LTC 134-2016 City of Miami Beach v. FF Cosmetics, Inc. MIAMIBEACH
OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION
LTC No. 134-2016
TO: Mayor Philip Levine and Members of the Ci Commission
FROM: Raul J. Aguila, City Attorne k-., ,
DATE: March 23, 2016
SUBJECT: City of Miami Beach v. FF Cosmetics, Inc.
Case Nos. 15-14394-AA I 15-15256-AA
Litigation Update
As many of you know, on August 31, 2015, the U.S. District Court for the Southern
District of Florida, in FF Cosmetics, Inc. et al, v. City of Miami Beach, enjoined
enforcement of the City's commercial solicitation and handbilling ordinances, which
prohibit these activities on portions of Ocean Drive, Lincoln Road, and three other
critical streets in the Art Deco Historic District. The lawsuit was brought by four cosmetic
companies that solicit pedestrians on Lincoln Road. The district court ruled that the
ordinances violate the First Amendment rights of commercial solicitors.
The City Attorney's Office immediately appealed this adverse ruling to the U.S. Court of
Appeals for the Eleventh Circuit. On March 11, 2016, the City submitted its initial brief in
support of its appeal. Our brief argues that existing case law allows the City to restrict
solicitation and handbilling to the less congested and less historically significant parts of
these streets.
At the request of the City Attorney's Office, on March 19, 2016, the Miami-Dade County
. League of Cities authored and filed an important amicus brief supporting the City's
position in the case.
Briefing for both sides will continue in the appellate court for the next several months.
After briefing is completed, the court may hold oral argument and will issue an opinion,
but there is no timeline that the court is required to follow.
Both our initial brief and the Miami-Dade County League of Cities' amicus brief are
attached for your review. If you have questions about this case, feel free to call me.
RJA/RFR
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Case Nos. 15-14394-AA / 15-15256-AA
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FF COSMETICS FL INC., a Florida corporation doing business as
Forever Flawless Cosmetics 1; TIMELESS COSMETICS FL INC.,
a Florida corporation; BRILLIANCE NEW YORK, LLC, a New York
limited liability company, f/k/a Brilliance New York, Inc.; and OCEANE
FL COSMETICS INC., a Florida corporation doing business as Tresor Rare,
,
Plaintiffs/Appellees
v.
CITY OF MIAMI BEACH, FLORIDA,
a Florida municipal corporation,
.
Defendant/Appellant
On Interlocutory Appeal From The United States District Court
For The Southern District of Florida, Miami Division
Case No. 14-22072-CIV-JLK
INITIAL BRIEF OF DEFENDANT-APPELLANT
CITY OF MIAMI BEACH
Robert F. Rosenwald, Jr. Richard J. Ovelmen
First Assistant City Attorney Enrique D. Arana
Donald M. Papy Justin S. Wales
Chief Deputy City Attorney Namrata Joshi
RAUL J. AGUILA, CITY ATTORNEY CARLTON FIELDS JORDEN BURT, P.A.
CITY OF MIAMI BEACH Miami Tower, Suite 4200
1700 Convention Center Drive, 4th Floor 100 S.E. Second Street
Miami Beach, Florida 33139 Miami, Florida 33131
Telephone: (305) 673-7470Telephone: (305) 530-0050
Facsimile: (305) 673-7002 Facsimile: (305) 530-0055
Attorneys for Defendant-Appellant City of Miami Beach
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Case Nos. 15-14394-AA; 15-15256-AA
FF Cosmetics FL Inc., et al. v. City of Miami Beach
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
Rule 26.1-1, Appellant City of Miami Beach hereby certifies that the following are
persons and entities that have an interest in the outcome of this appeal:
Aaronson, Daniel R. (Counsel for Plaintiffs/Appellees)
Aguila, Raul J. (City Attorney, City of Miami Beach, Defendant/Appellant)
Arana, Enrique D. (Counsel for Defendant/Appellant)
Benjamin, Aaronson, Edinger & Patanzo, P.A. (Counsel for
Plaintiffs/Appellees)
Benjamin, James S. (Counsel for Plaintiffs/Appellees)
Brilliance New York, LLC, f/k/a Brilliance New York, Inc.
(Plaintiff/Appellee)
Byers, Scott E. (Counsel for Defendant/Appellant)
Carlton Fields Jorden Burt,P.A.(Counsel for Defendant/Appellant)
City of Miami Beach (Defendant/Appellant)
Edinger, Gary Scott (Counsel for Plaintiffs/Appellees)
FF Cosmetics FL Inc., d/b/a Forever Flawless Cosmetics 1
(Plaintiff/Appellee)
Kairalla, Jason Patrick (Counsel for Defendant/Appellant)
King, James Lawrence (District Judge, Southern District of Florida)
Oceane FL Cosmetics Inc., d/b/a Tresor Rare (Plaintiff/Appellee)
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Case Nos. 15-14394-AA; 15-15256-AA
FF Cosmetics FL Inc., et al. v. City of Miami Beach
Ovelmen, Richard J. (Counsel for Defendant/Appellant)
Papy, Donald M. (Counsel for Defendant/Appellant)
Rosenwald, Jr., Robert (Counsel for Defendant/Appellant)
Timeless Cosmetics FL Inc. (Plaintiffs/Appellee)
Wales, Justin S. (Counsel for Defendant/Appellant)
CORPORATE DISCLOSURE STATEMENT
The City of Miami Beach is a municipal corporation organized and existing
under the laws of the State of Florida and, as such, has no parent corporation.
/s/ Robert F. Rosenwald, Jr.
Robert F. Rosenwald, Jr.
Florida Bar No. 190039
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STATEMENT REGARDING ORAL ARGUMENT
Counsel for Defendant-Appellant City of Miami Beach request oral
argument.
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT.............................................................................. C-1
STATEMENT REGARDING ORAL ARGUMENT ............................................... i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF CITATIONS ........................................................................................ vi
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION....................................................................................................... xi
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 3
A.Nature of the Case ................................................................................. 3
B.Procedural Posture And Disposition In The Court Below .................... 4
C.Statement Of The Facts ......................................................................... 6
1.The Substantial Interests Of The City In Regulating
Commercial Solicitation On The Most Congested
Sidewalks Of Its Historic Districts ............................................. 6
a.The Art Deco District Is The Engine Of The City’s
Tourist-Driven Economy .................................................. 6
b.The Art Deco District Is Heavily Regulated To
Protect These Substantial Interests ................................... 8
c.Commercial Hawking And Handbilling In The Art
Deco District Have Harmed The City’s Substantial
Interests ............................................................................. 9
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2.The Initial Ordinances Enacted To Control Aggressive
Commercial Solicitation And Handbilling ............................... 11
3.The Lawsuit Challenging The Initial Ordinances ..................... 13
4.The City Conducts Public Hearings That Result In
Narrowly Tailored Amended Ordinances Restricting
Commercial Solicitation On Only The Most Congested
Sections of Five Streets In The Art Deco District Which
Constitute 3% of the Municipality ............................................ 13
5.The Amended Lawsuit Challenging The Amended
Ordinances ................................................................................ 14
6.The Evidence Presented At The Preliminary Injunction
Hearing ...................................................................................... 15
a.The Evidence Regarding The Scope And Extent
Of Intrusive And Disruptive Commercial
Solicitation ...................................................................... 15
b.The Evidence Regarding Plaintiffs’ Fraudulent
Sales Pitches ................................................................... 18
c.The Evidence That The City Enacted Ordinances
Which Are Narrowly Tailored And Leave Open
Alternative Channels Of Communication ...................... 20
7.The District Court Enters A Preliminary Injunction
Holding The Amended Ordinances Are Not “Narrowly
Tailored” But Rather Constitute A “Blanket Ban” On
Commercial Speech, And That The City Failed To Prove
The Solicitation Is Mostly False, Misleading, Or Related
To Unlawful Activity ................................................................ 22
STANDARD OF REVIEW ..................................................................................... 25
SUMMARY OF THE ARGUMENT ...................................................................... 27
ARGUMENT ........................................................................................................... 28
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I.THE PRELIMINARY INJUNCTION SHOULD BE REVERSED
BECAUSE PLAINTIFFS FAILED TO CARRY THEIR BURDEN
OF PERSUASION WITH RESPECT TO DEMONSTRATING A
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS .......... 29
A.The Preliminary Injunction Should Be Reversed Because
Plaintiffs Failed To Carry Their Burden Of Persuasion On The
First Prong Of ........................................................... 32
Central Hudson
B.The Preliminary Injunction Should Be Reversed Because Its
Ruling That The Amended Ordinances Are Not Narrowly
Tailored Under The Fourth Prong Of Is
Central Hudson
Contrary To And Other Binding Precedent Of This
Sciarrino
Circuit .................................................................................................. 37
1.Circuit Precedent Uniformly Upholds Restrictions On
Commercial Solicitation Within The Most Congested
Portions Of A City’s Historic District Because They Are
Narrowly Tailored To Directly Advance Substantial
GovernmentalInterests ............................................................. 38
2.The Evidence Showed That The Restrictions Are
Narrowly Tailored And Leave Open Adequate
Alternative Channels Of Communication ................................. 45
3.The Preliminary Injunction Must Be Reversed Because It
Mistakenly Applies Total Ban Precedent To Find The
Limited Geographic Restrictions Imposed By The
Amended Ordinances Are Not Narrowly Tailored ................... 54
C.The Handbill Ordinance Is Not Facially Overbroad ........................... 58
1.The Commercial Handbill Ordinance Addresses Only
Commercial Speech .................................................................. 58
2.Even If The Commercial Handbill Ordinance Could Be
Read To Restrict Distribution Of Commercial And
Noncommercial Handbills On Lincoln Road, The
Handbill Ordinance Would Still Be A Valid Time, Place,
And Manner Restriction Under And .................. 60
HortonSmith
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II.THE PRELIMINARY INJUNCTION SHOULD BE REVERSED
BECAUSE PLAINTIFFS HAVE FAILED TO CARRY THEIR
BURDEN OF PERSUASION WITH RESPECT TO THE
REMAINING ELEMENTS OF THE PRELIMINARY INJUNCTION
TEST .............................................................................................................. 62
A.The Plaintiffs Will Suffer No Irreparable Injury Because They
Did Not Established A Likelihood Of Success On The Merits
Of Their First Amendment Challenge ................................................. 62
B.The Injury To The City From Enjoining Enforcement Of Its
Ordinances Far Outweighs Any Harm To The Plaintiffs ................... 62
C.An Injunction Prohibiting Enforcement Of The Amended
Ordinances Would Greatly Injure The Public Interest ........................ 63
CONCLUSION ........................................................................................................ 64
CERTIFICATE OF COMPLIANCE ....................................................................... 66
CERTIFICATE OF SERVICE ................................................................................ 67
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TABLE OF CITATIONS
Page
Cases
All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc.,
887 F.2d 1535 (11th Cir. 1989) ..................................................................... 28
American Civil Liberties Union of Florida, Inc. v. Miami-Dade County
,
School Board
557 F.3d 1177 (11th Cir. 2009) .............................................................. 26, 29
,
American Future Systems, Inc. v. Pennsylvania State University
618 F.2d 252 (3d Cir. 1980) .......................................................................... 53
,
Annunziata v. School Board of Miami-Dade County
2005 WL 591205 (11th Cir. Mar. 4, 2005) ................................................... 42
Arlook v. S. Lichtenberg & Co.,
952 F.2d 367 (11th Cir. 1992) ....................................................................... 26
,
Board of Trustees of the State University of New York v. Fox
492 U.S. 469 (1989).......................................................................... 30, 32, 57
,
Bond v. United States
134 S. Ct. 2077 (2014) ................................................................................... 59
,
CAMP Legal Defense Fund, Inc. v. City of Atlanta
451 F.3d 1257 (11th Cir. 2006) ..................................................................... 26
Central. Hudson Gas & Electric Corp. v. Public Service Commission of New
,
York
447 U.S. 557 (1980).................................................................... 29, 32, 36, 54
,
Chicago Tribune Co. v. Bridgestone/Firestone, Inc.
263 F.3d 1304 (11th Cir. 2001) ..................................................................... 25
,
Clark v. Community for Creative Non-Violence
468 U.S. 288 (1984)....................................................................................... 30
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,
CNL Hotel & Resort, Inc. v. Houston Casuaty Co.
2007 WL 1128965 (M.D. Fla. Apr. 16, 2007) ............................................ 59
,
Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta
219 F.3d 1301 (11th Cir. 2000) ..................................................................... 26
,
Don’s Porta Signs, Inc. v. City of Clearwater
829 F.2d 1051 (11th Cir. 1987) .............................................................. 26, 49
,
Edenfield v. Fane
507 U.S. 761 (1993)...................................................................... 1, 36, 37, 54
,
Falanga v. State Bar of Georgia
150 F.3d 1333 (11th Cir. 1998) .............................................................. 26, 33
,
Fane v. Edenfield
945 F.2d 1514 (11th Cir. 1991) ..................................................................... 54
,
Florida Conference of NAACP v. Browning
522 F.3d 1153 (11th Cir. 2008) ..................................................................... 25
,
Friedman v. Rogers
440 U.S. at 1 (1979) ....................................................................................... 33
,
Globe Newspaper Co. v. Beacon Hill Architectural Comm’n
100 F.3d 175 (1st Cir. 1996) .......................................................................... 60
,
Hop Publication, Inc. v. City of Boston
334 F. Supp. 2d 35 (D. Mass. 2004) .............................................................. 61
,
Horton v. City of St. Augustine
272 F.3d 1318 (11th Cir. 2001) ............................................................. passim
,
In re R.M.J.
455 U.S. 191 (1982)....................................................................................... 32
Interstate Outdoor Advertising, L.P. v. Zoning Board of the Township of
,
Mount Laurel
706 F.3d 527 (3d Cir. 2013) .......................................................................... 52
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,
Jim Gall Auctioneers, Inc. v. City of Coral Gables
210 F.3d 1331 (11th Cir. 2000) ..................................................................... 50
,
Jones v. Int’l Riding Helmets, Ltd.
49 F.3d 692 (11th Cir. 1995) ......................................................................... 25
,
Lamar v. Micou
114 U.S. 218 (1885)....................................................................................... 42
,
Liberty Coins, LLC v. Goodman
748 F.3d 682 (6th Cir. 2014) ............................................................ 62, 63, 64
,
Messer v. City of Douglasville
975 F.2d 1505 (11th Cir. 1992) ..................................................................... 31
,
Metromedia, Inc. v. City of San Diego
453 U.S. 490 (1981).......................................................................... 30, 53, 57
,
Ohralik v.Ohio State Bar Ass’n
436 U.S. 447 (1978)................................................................................ 33, 55
,
One World One Family Now v. City of Miami Beach
175 F.3d 1282 (11th Cir. 1999) .............................................................. 31, 50
,
Penn Central Transportation Co. v. City of New York
438 U.S. 104 (1978)....................................................................................... 31
,
Presnell v. Zant
959 F.2d 1524 (11th Cir. 1992) ..................................................................... 42
,
Riel v. City of Bradford
485 F.3d 736 (3d Cir. 2007) .......................................................................... 57
,
Sciarrino v. City of Key West
1995 WL 17115931 (11th Cir. July 10, 1995) ................................. 39, 41, 49
,
Sciarrino v. City of Key West
83 F.3d 364 (11th Cir. 1996) ................................................................. passim
,
Sciarrino v. City of Key West
867 F. Supp. 1017 (S.D. Fla. 1994) .................................................. 29, 39, 59
-viii-
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SEC v. Unique Financial Concepts, Inc.,
196 F.3d 1195 (11th Cir. 1999) .............................................................. 25, 26
,
Shapero v. Kentucky Bar Ass’n
486 U.S. 466 (1998)....................................................................................... 54
,
Siegel v. LePore
234 F.3d 1163 (11th Cir. 2000) ..................................................................... 28
,
Smith v. City of Ft. Lauderdale
177 F.3d 954 (11th Cir. 1999) ............................................................... passim
,
Tefel v. Reno
180 F.3d 1286 (11th Cir. 1999) ..................................................................... 25
,
United States v. Salerno
481 U.S. 739 (1987)....................................................................................... 61
,
United States v. Varner
13 F.3d 1503 (11th Cir. 1994) ....................................................................... 25
,
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.
455 U.S. 489 (1982)................................................................................ 37, 58
,
Ward v. Rock Against Racism
491 U.S. 781 (1989).......................................................................... 30, 45, 47
,
WV Ass’n of Club Owners & Fraternal Services, Inc. v. Musgrave
553 F.3d 292 (4th Cir. 2009) ......................................................................... 62
,
Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio
471 U.S. 626 (1985)....................................................................................... 54
Statutes
28 U.S.C. § 1292(a)(1) ............................................................................................. xi
Rules
City of Miami Beach Code of Ordinances § 106-3 ................................................. 46
City of Miami Beach Code of Ordinances § 118-503 ............................................... 8
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City of Miami Beach Code of Ordinances § 12-5 ..................................................... 9
City of Miami Beach Code of Ordinances § 46-92 ......................................... passim
City of Miami Beach Code of Ordinances § 70-5 ..................................................... 9
City of Miami Beach Code of Ordinances § 70-67 ................................................. 46
City of Miami Beach Code of Ordinances § 74-1 .................................. 4, 12, 14, 20
City of Miami Beach Code of Ordinances § 82-256 ................................................. 9
City of Miami Beach Code of Ordinances § 82-381, ..................................... 9
et seq.
City of Miami Beach Code of Ordinances § 82-385 ............................................... 46
City of Miami Beach Code of Ordinances Ch. 138 ................................................... 9
City of Miami Beach Code of Ordinances Code § 138-71 ...................................... 57
City of Miami Beach Code of Ordinances, Ch. 118, Art. X...................................... 8
Ft. Lauderdale Code § 8-55 ..................................................................................... 50
St. Augustine Code § 22-11 ..................................................................................... 51
St. Augustine Code § 22-15(d) ................................................................................ 51
St. Augustine Code § 22-7 ....................................................................................... 51
St. Augustine Code § 24-170 ................................................................................... 51
Other Authorities
United States Census Bureau, , “Miami
Economic-Wide Key Statistics
Beach” and “Key West” (Feb. 16, 2016), http://factfinder.census.gov ........ 38
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STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
This is an interlocutory appeal from Orders of the United States District
Court for the Southern District of Florida entered in a civil case granting Plaintiffs-
Appellees’ renewed motion for preliminary injunction, DE122 (August 31, 2015);
and denying Defendant-Appellant’s motions for clarification of that order, DE140
(November 2, 2015), and for reconsideration, DE142 (November 6, 2015).
This Court has jurisdiction over these timely and consolidated appeals
pursuant to 28 U.S.C. § 1292(a)(1).
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STATEMENT OF THE ISSUES
This appeal presents three questions for appellate review:
(1) Whether the District Court correctly ruled that Plaintiffs carried their
burden of persuasion for a preliminary injunction as to their substantial likelihood
of success on the merits because under the first prong of the test
Central Hudson
the City proved only some of their commercial expression is false, misleading, and
related to unlawful actions.
(2) Whether the District Court correctly ruled Plaintiffs carried their
burden of persuasion as to substantial likelihood of success in holding that the
Amended Ordinances restricting commercial solicitation and handbilling on the
most congested sections of five streets in the Historic Art Deco District,
constituting less than 3% of the City, violate the “narrow tailoring” fourth
requirement of because they should be regarded as “total or
Central Hudson
blanket bans” on commercial expression under , 507 U.S. 761
Edenfield v. Fane
(1993), and its progeny, rather than reasonably-tailored geographic limitations
upheld by , 83 F.3d 364 (11th Cir. 1996), and other
Sciarrino v. City of Key West
applicable precedent of this Circuit.
(3) Whether the District Court erred by not applying the plain meaning of
the word “commercial handbill” to uphold the City’s commercial handbilling
restriction as applying only to commercial speech, or, alternatively, by not
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applying this Court’s controlling precedent in andto uphold the
Horton Smith
limited geographic restriction under traditional time, place, and manner analysis.
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1
STATEMENT OF THE CASE
A.Nature of the Case
This is an interlocutory appeal from the entry of a preliminary injunction
that ordered the City of Miami Beach (the “City”) to halt enforcement of Amended
Ordinances that restrict commercial solicitation and handbilling in the most
congested sections of five streets in the Historic Art Deco District. The District
Court found the Plaintiffs carried their burden of persuasion as to the likelihood of
success on the merits, despite finding the Ordinances directly advance multiple
substantial governmental interests under the second and third prongs of the
Central
test governing restrictions on commercial speech.
Hudson
The trial judge based its decision that Plaintiffs carried their burden of
persuasion entitling them to the extraordinary remedy of preliminary injunction
relief on two fundamental rulings. First, he concluded the City, which was not the
movant seeking a preliminary injunction, “had not demonstrated that Plaintiffs’
speech was mostly, or even often false or misleading,” and the pretextual
expression on the sidewalks to induce the “marks” to enter the stores was not false
or misleading, or related to unlawful activity. DE122at7. The trial judge reached
1
Citations in the form “DE__” refer to Document Entry numbers in the
District Court’s docket. “Tr.__(Date,DE__)” refers to the pages of the Preliminary
Injunction Hearing Transcripts contained in the record at DE79-80, 113, 120-21.
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this conclusion despite finding that claims Plaintiffs made about the health value of
“diamond dust” in their exorbitantly-priced cosmetics were “preposterous,” and
that the commercial hawking on the sidewalks presents “one underlying message
and one object, albeit often indirectly stated: to have prospects enter their stores
and purchase Plaintiffs’ products.” DE122at5,6.
Second, the District Court found the prohibition on commercial solicitation
and handbilling along the five congested sections of the Art Deco streets
(encompassing 3% of the City) constitutes a “blanket” or “total ban” on
commercial speech and was not narrowly tailored to serve the several substantial
government interests that the Amended Ordinances directly advance.
The City appeals those rulings.
B.Procedural Posture And Disposition In The Court Below
Three Plaintiffs filed this lawsuit on June 5, 2014, challenging City
Ordinances Section 74-1 (commercial solicitation) and Section 46-92(g)
(commercial handbilling) on First Amendment, Due Process, and Equal Protection
grounds. DE1. On that same day, Plaintiffs moved for a preliminary injunction to
halt enforcement of the ordinances. DE4. The parties agreed to stay the litigation
pending an attempt to resolve it through amended legislation. The City held four
public hearings to address the problems caused by commercial solicitation and
handbilling, and on November 19, 2014, the City amended both ordinances to
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prohibit commercial solicitation and handbilling on just the congested sections of
five streets in the Art Deco Historic District (the “Amended Ordinances”).
Plaintiffs filed an amended complaint and renewed preliminary injunction
motion on December 3, 2014, seeking to invalidate the Amended Ordinances.
DE26,27. On December 22, 2014, the City responded, and on January 5, 2015,
Plaintiffs replied. DE37,43. On April 29–30, 2015 and July 27-29, 2015, the
District Court held evidentiary hearings, at which testimony and documentary
evidence were presented. DE79-80,113,120-21. On August 31, 2015, the District
Court granted Plaintiffs a preliminary injunction. DE122. The City timely filed
notice of appeal of that order on September 29, 2015. DE130.
The City moved for clarification of the preliminary injunction order on
September 16, 2015 and for reconsideration or a stay on September 28, 2015.
DE125,127. The District Court denied both motions. DE140,142. The City
appealed those orders on November 19, 2015. The appeals were consolidated on
December 18, 2015. This brief addresses the denial of all three orders.
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2
C.Statement Of The Facts
The Preliminary Injunction concluded that the Amended Ordinances directly
advanced substantial governmental interests. DE122at7-10. Plaintiffs did not
contest those issues.
1.The Substantial Interests Of The City In Regulating
Commercial Solicitation On The Most Congested Sidewalks
Of Its Historic Districts
a.The Art Deco District Is The Engine Of The City’s
Tourist-Driven Economy
The City’s Art Deco Historic District (the “District”), the first 20th-century
neighborhood to be recognized by the National Register of Historic Places, is both
a national treasure and international attraction. DE35-1at8-9; DE35-2 through
3
DE35-9; DE35-47at21; DE35-62toDE35-63. The area is the epicenter of
2
The District Court admitted the legislative record supporting the
Ordinances and heard live testimony at a hearing on the preliminary injunction
motion. These facts are taken from those sources.
3
The City has twelve Local Historic Districts and four National Historic
Districts (the “Historic Districts”). Four of the Local Historic Districts – the
Flamingo Park Historic District, the Ocean Drive/Collins Avenue Historic District,
the Española Way Historic District, and the Museum Historic District – comprise
the federally-recognized Miami Beach Architectural District which is also known
as the “Art Deco District.” DE138at4. A map of the City’s Historic Districts and
the portions of those districts where hawking is regulated (shown in blue stripes) is
reproduced here:
(footnote continued on next page)
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economic activity in the City and the cornerstone of South Florida’s tourism
industry. DE35-10at6–12; DE35-47at21.
Prior to its historic preservation, this neighborhood was plagued with crime
and blight. Physical decay was rampant and many of the District’s unique
buildings were slated for demolition. The desire to save the District’s aesthetics
prompted a widespread interest in preserving the area that eventually made the
District economically viable again. DE35-1at7-8; DE35-2at2-3; DE35-62at2.
Now a focal point of revitalization and redevelopment, The City’s Art Deco
District is an international landmark. Aside from its architectural beauty, the most
important features of the District are its pedestrian promenades and sidewalk cafes.
DE35-35; DE35-63at2-4; Tr.70-71,74-75(7/27/15,DE113). The City rents
sidewalk space in the District at rates to encourage sidewalk cafes, art exhibits, and
DE138-1at6.
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theatrical performances in the outdoor space. Tr.70,79-81(7/27/15,DE113). This
unique ambiance allows leisurely strolls to shop, eat, watch a show, or do nothing
at all but savor the Art Deco experience. DE35-9toDE35-10; DE35-12; DE35-47;
DE35-52; DE35-58; DE35-58at28-31,35.
As a result of the City’s efforts, residents desire to live there, businesses pay
substantial rents to operate there, and luxury tourists flock from around the world
to visit. The City is the top tourist destination in Miami-Dade County, visited by
43.6% of the County’s 14 million visitors. DE35-10at6-13; DE35-57at30. South
Beach, the Art Deco District, Ocean Drive, and Lincoln Road are the favorite
features of South Florida, among both domestic and international visitors alike.
DE35-10at12,17-23. Resort taxes and property taxes attributable to tourism
account for the majority of the City’s revenue.; Tr.70–77(7/27/15,DE113).
Id.
b.The Art Deco District Is Heavily Regulated To
Protect These Substantial Interests
Since its addition to the National Register of Historic Places, the City has
heavily regulated the District to promote and protect its unique aesthetic and
ambiance. DE35-42; DE35-1at7-9; Tr.72,102–03(7/27/15,DE113); City of Miami
Beach Code of Ordinances (“Code”), Ch. 118, Art. X.
Specifically, the City regulates all commercial activity on the streets and
sidewalks in the District, and the buildings and cafes are subject to an extensive
review process. Code § 118-503. The City regulates the number and size of signs
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for commercial establishments, Ch. 138, prohibits the display of food outside of
id.
sidewalk cafes, § 70-5, regulates sampling of products, § 12-5, and regulates
id.id.
newspaper distribution. § 82-256. The City also has strict criteria governing
Id.
cafes, including the number, spacing, and design of tables that may be used.
Id.
§ 82-381, Finally, bicycles, segues, skateboards, and hover boards are
et seq.
prohibited on Lincoln Road to accommodate increased pedestrian traffic. Tr.98-
99(7/27/15,DE113).
c.Commercial Hawking And Handbilling In The Art
Deco District Have Harmed The City’s Substantial
Interests
The City received a burgeoning number of complaints regarding commercial
solicitation and handbilling in the District and the adverse effect of such behavior
on tourist’s and residents’ perception of the City and on business owners’ sales.
First, nightclubs hired promoters to walk up and down the streets and beaches in
the District to distribute flyers to passersby which would often end up on the
streets or beaches. DE35-47at16. Cleanliness decreased and sanitation workloads
increased. DE113at77-78. The discarded commercial handbills damaged the
City’s storm water system and spoiled the City’s beaches. DE35-58at56.
Restaurants located within the District started placing solicitors outside of
their establishments to hawk their menus to pedestrians. DE35-47at1; DE35-
58at30-51. One City resident testified that the practice was so bad that she avoided
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Ocean Drive entirely because the solicitors caused her to feel “trapped as you walk
down the street, maneuvering between rows of tables that, at most, offer 2–3 feet
of sidewalk space.” DE35-47at1.
The volume of restaurants hawking their specials is disruptive and intrusive.
Former Assistant City Manager Jose Jimenez testified that there were so many
restaurant solicitors that he couldn’t walk 40 or 50 feet without being solicited; a
feeling he described as “death by papercut.” Tr.79–80(7/27/15,DE113).
Moreover, commercial landlords testified that street hawking made it impossible to
market properties to stable high-end tenants. DE35-47at8-10,14-16; Tr.79–81
(7/28/15,DE121).
4
More recently, cosmetics companies, including those owned by Plaintiffs,
have exponentially exacerbated the problems associated with commercial
solicitation in the District. In particular, the City received hundreds of complaints
and negative comments regarding the Plaintiffs’ hawking on Lincoln Road. Jose
Jimenez explained that their practice was “not just a simple interruption, but it was
” and that “[t]here were accusations of
walking along the [pedestrian’s] side
[pedestrians] being in some way, or sort of . It wasn’t
grabbed or touchedblocked
4
Three of the Plaintiffs are commonly owned and operated by Moti
Shenfarber and another unidentified man residing in Israel. The fourth, Brilliance
New York, is independently owned but operates on the same business model.
Tr.36(4/29/15,DE79); Tr.158-60(7/29/15,DE113).
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as passive. It was much more aggressive.” Tr.80(7/27/15,DE113);
see generally
DE35.
The evidence established that Plaintiffs’ sales pitches are solely intended to
induce unsuspecting tourists into their stores, so they can be sold overpriced
cosmetics, which are falsely represented to be infused with precious gems that
preposterously deliver “age-defying” ingredients into the skin and can supply other
medicinal treatments. DE58-4; DE68-6; Tr.24,47-54,57-61(7/27/15,DE113);
DE122at5-6.
2.The Initial Ordinances Enacted To Control Aggressive
Commercial Solicitation And Handbilling
In response to increased congestion and pedestrian traffic and the growing
problem of intrusive and disruptive commercial hawking and handbilling in the
District, the City undertook a holistic review of the ordinances and regulations
governing it, reassessing threats to the unique experience that the City had worked
so hard to create. DE122at7-10; DE35-57; DE35-58.
Several attempted regulatory solutions were enacted. First, in 2012,
commercial solicitation was prohibited citywide, but that proved unworkable due
to personnel constraints. DE35-47at17,23; DE35-58at42-44; Tr.40-41(7/28/15,
DE121). The ordinances restricted only aggressive solicitation, but that did not
solve the problem caused by the sheer volume of non-aggressive solicitation
occurring every few feet in the District. DE35-57at47; Tr.101-
See generally
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02(7/27/15,DE113). Finally, enforcement of the City’s regulations was transferred
from the police to Code Compliance, fines increased, and the restrictions
decriminalized to facilitate easier enforcement, but enforcement was ineffective
and burdensome. DE35-47at17.
The City previously prohibited placing commercial handbills on parked
vehicles because drivers habitually tossed them on the ground. In 2012, the City
enacted ordinances which prohibited distribution of commercial handbills on
heavily traveled streets during “high impact weekends,” but increased traffic has
made every weekend high impact. DE1at39; DE35-57at26-28,38; DE35-47at22;
Tr.96(7/27/15,DE113).
Despite these regulations, commercial hawking and handbilling of products
in the District has increasingly strained limited City enforcement resources, as
complaints and citations multiplied. DE35-47at38; DE35-47at23; Tr.38-
39(7/28/15,DE121). The Code Compliance Director testified that in Fiscal Year
2012-13, inspectors issued 85 violations pursuant to § 74-1 (Solicitation/Hawking)
and 14 pursuant to § 46-92 (Handbilling). D35-47at18. The following year, 161
violations were issued under § 74-1 and 118 violations were issued under § 46-92.
This amounts to a 181% increase in cited from 2013–14 relative to the
Id.
previous year, and 2,146% from 2012 to 2014. DE35-29; Tr.97-98(7/27/15,
DE113); Tr.30(7/28/15,DE121).
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3.The Lawsuit Challenging The Initial Ordinances
When the City attempted to enforce the Initial Ordinances, Plaintiffs filed a
lawsuit alleging the regulations violated their First Amendment rights. DE1. The
case was stayed, and Plaintiffs agreed to a standstill while the City considered
alternatives. During this period when Plaintiffs were regulating themselves, the
City received hundreds of complaints. DE35-63; Tr.68(7/27/15,DE113).
4.The City Conducts Public Hearings That Result In
Narrowly Tailored Amended Ordinances Restricting
Commercial Solicitation On Only The Most Congested
Sections of Five Streets In The Art Deco District Which
Constitute 3% of the Municipality
While the case was stayed, the City held four publicly-noticed meetings to
address these problems, and heard testimony from residents and business owners
that commercial solicitation in certain areas of the District had become so intrusive
that the City’s image and experience as a luxury tourist destination was being
5
seriously damaged. Tr.87(7/27/15,DE113); DE35-58at13. No evidence was
5
The City presented evidence documenting the negative effects of
commercial solicitation and handbilling, including sworn declarations from
residents and business owners (DE35-47at1,5,8), written complaints to officials
about the conduct of commercial solicitors (DE35-23to35-27), news articles and
commentary about the problems with commercial solicitation (DE35-13), and
social media and consumer protection comments and complaints (DE35-
15to35-18).
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submitted in favor of commercial solicitation in the District. Tr.87-88
(7/27/15,DE113).
The City Commission then enacted the current amendments to Ordinances
§ 74-1 (commercial solicitation) and § 46-92 (commercial handbilling) (the
“Amended Ordinances”) to prohibit commercial solicitation and handbilling along
sections of five designated streets that are heavily congested. Addendums 1 and 2.
The Amended Ordinances regulate approximately 11.75% of the geographic area
of the Art Deco District, 5.7% of the City’s historic districts, and just 3% of the
City. DE138-3at3,6; DE138-5at2; DE35-42. Restrictions were rescinded for the
rest of the City.
5.The Amended Lawsuit Challenging The Amended
Ordinances
On December 3, 2014, Plaintiffs filed a four-count Amended Complaint and
a motion for preliminary injunction against the Amended Ordinances. DE26,27.
The Amended Complaint alleged that the Ordinances impermissibly burdened
Plaintiffs’ First Amendment rights because Plaintiffs offer “lines of beauty
products not available in chain stores or via the Internet” (DE26¶17), and assert
they “rely on personal, face-to-face communications, with their patrons and
potential patrons . . . .” and that “[o]ther forms of communication – including signs
and print ads, radio and television – are noticeably less effective in reaching
Plaintiffs’ target customers.”¶¶18,20.
Id.
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6.The Evidence Presented At The Preliminary Injunction
Hearing
a.The Evidence Regarding The Scope And Extent Of
Intrusive And Disruptive Commercial Solicitation
The City presented unrebutted testimony about the disruptive and intrusive
effects of commercial solicitors and handbillers on the restricted streets in the
District, and the harms they cause to substantial municipal interests.
Tr.79,80,96(7/27/15,DE113); Tr.57-58(4/29/15,DE79); Tr.29-30,37-38,50(7/28/15,
DE121); DE122at2,9. The City presented evidence that restaurants and cosmetic
stores hawk along the most heavily trafficked portions of the District with some
areas containing solicitors every 40 or 50 feet. Tr.79,80,96(7/27/15,DE113). No
witness testified that they found the commercial solicitation acceptable.
The evidence demonstrated that Plaintiffs’ form of solicitation was
particularly offensive and aggressive. Plaintiffs primarily target tourists, rather
than local residents. Tr.38,86(4/29/15,DE79). Each of Plaintiffs’ stores assigns up
to four hawkers on the sidewalk about 18–25 feet in front of their front doors to
approach people who appear to be tourists visiting Lincoln Road. DE.35-33at4;
DE35-47at1,5-8,12; DE35-58at13; Tr.39-41,57-60(4/29/15,DE79); Tr.79-80,158-
61(7/27/15,DE113). The pitch starts with pretextual questions: “Where are you
from? What do you use on your skin? What do you use on your hair?” The trial
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court found these questions are solely intended to induce pedestrians to enter the
store to buy product. DE122at2.
Pedestrians find this practice to be jarring and unpleasant. For example, one
person responded to a City survey as follows:
[G]et the guys off Lincoln Road who interrupt you and ask you
what you’re using on your skin. So annoying. Also, please ask
the restaurant to stop interrupting us with menus, particularly
along Ocean. Downright annoying.
Tr.90(7/27/15,DE113). A City resident testified similarly:
The people . . . will follow you down the street and verbally
harass you and ask you personal questions. And you know,
“You’re not my friends. I don’t want anything to do with you.”
DE35-58at38. One Lincoln Road employee said it this way:
They stand in your way, halt you in your stride with their fake
question of “may I ask you a question,” and because most
people are polite, are subsequently cornered as they do all they
can to lure you into their store with the promise of “free”
cosmetics.
DE35-25at1. Businesses along Lincoln Road testified that Plaintiffs’ solicitors
harm them:
I have seen pedestrians walk to the other side of Lincoln Road
in attempt to avoid aggressive solicitation. As a result, potential
customers do not get the chance to walk past certain shops,
including my own. In addition to the insistent and aggressive
solicitation in front of their stores, I have also seen Forever
Flawless employees follow customers down Lincoln Road in an
attempt to sell their products.
DE35-47at8.
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Plaintiffs’ hawkers also employ intimidation and bullying techniques to stop
unwilling pedestrians. The owner of the shoe store contiguous to Brilliance New
York testified that solicitors follow pedestrians down the street and physically put
their hands on them to stop them. Tr.58(4/29/15,DE 79); DE35-15at2; DE35-24;
DE35-53at3. The manager of a business neighboring Timeless Cosmetics testified
that they “have been pursuing an endless form of intimidation towards anybody
and everybody who has the misfortune to walk along[.]” DE35-25at1.
Multiple witnesses testified that pedestrians who ignore Plaintiffs’
solicitations are routinely cursed out by the hawkers. DE35-47at6; DE.35-58at30–
31. Complaints of this nature were common. DE35-15at2 (“literally follow
See
you walking, tapping you on the shoulder”); DE35-23at1 (“we were ambushed left
and right on both sides of the street almost every three or four stores . . . . Until we
had to leave Lincoln Road.”). The District Court admitted the following complaint
into evidence:
I live next to Lincoln Road and have avoided it for these
reasons. They accost tourists and manipulate questions in order
to sell you something by chasing you down the road and
sucking you into their tourist trap skin care place or restaurant.
It is certainly harassing and unpleasant. The problem is the
fines are a “cost of business” for them and too little for them to
care.
DE35-15at3.
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Some pedestrians report the hawking to the Miami Beach Police
Department. The City’s former Assistant City Manager explained:
Q. What kind of complaints did the Police Department
receive?
A. [P]eople felt intimidated. They were blocked. They’ve
been touched. They just don’t feel safe. They feel like
they’re being accosted. The minute you put your hands
on somebody like that, yeah, if it’s cause to call the
police, that definitely worried me. That is not something
that people do, in my experience, people do lightly.
Tr.90(7/27/15,DE113). The City Commission considered and the District Court
admitted into evidence multiple police reports from pedestrians regarding
Plaintiffs’ marketing practices (DE35-34) and threats of violence occurred.
Tr.77(7/27/15,DE113); Tr.13-14,18(7/28/15,DE121); DE 35-13at9-11.
b.The Evidence Regarding Plaintiffs’ Fraudulent Sales
Pitches
These sales tactics serve the express purpose of inducing tourists to enter
Plaintiffs’ stores, and the undisputed evidence established that Plaintiffs defraud
tourists once they enter the stores. DE58-4; DE68-1to68-3; Tr.24,47-54,57-
61(7/27/15,DE113); DE122at2,5-6. The products sold by Plaintiffs cost about
$7.00 to $10.00 to make. DE58at40; Tr.58(7/27/15,DE113). There are no prices
on the products, however, because the amounts extracted range from hundreds to
thousands of dollars, depending upon the hawkers’ perception of a customer’s
willingness to pay.DE35-34at10-12,19-30;DE35-17to35-19; DE35-21.
see also
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6
The District Court received extensive and undisputed evidence that
Plaintiffs’ hawkers tell dangerous lies about the products. Tr.24,47-54,57-
61(7/27/15,DE113). Each of the Plaintiffs sell lotions and creams they market as
containing powder from diamonds and other precious gems, DE68-3; Tr.48-
58(7/27/15,DE113), which they describe to customers as “medicine” that can be
used to treat skin diseases such as acne and rosacea, DE58-4at49, can reproduce
the effects of the prescription drug BOTOX, at 8; DE68-1, can improve blood
id.
circulation and reproduce collagen, and that the diamond powder in their products
allows the products to penetrate the skin to carry medication into the body.
DE58-4at8,141; DE68-1to68-5. Plaintiffs’ representative Moti Shenfarber
confirmed that his sales staff repeats the claims made on the Forever Flawless
website regarding the health benefits of diamond-infused cosmetics, including their
ability to “reduce fever, fight infection, invigorate metabolism, rejuvenate blood
6
The City sent female staff members to walk by Plaintiffs’ stores, where
they were approached and taken into the store. Once inside, they listened to
Plaintiffs’ sales pitches and bought products at each store. Each of the customers
recorded the entire interaction on her iPhone. The conversations were transcribed
by a court reporter and presented to the District Court with a declaration of the
shopper and the court reporter attesting to the accuracy of the recording. In
addition, each customer testified via declaration to the substance of the
representations that were made to them in Plaintiffs’ stores. Finally, four of the
five shoppers testified live at the preliminary injunction hearing as to the accuracy
of the recordings. DE68-1to68-5; Tr.62-70,90-96,97-110,116-32(7/28/15,DE121).
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circulation, and help with many skin disorders.” DE58-5at5; Tr.121-
7
24(4/29/15,DE79). The trial court found these claims were “preposterous”:
For example, employees of some of the Plaintiffs tell customers
that certain products help to produce collagen, and that
diamonds in the products allow ingredients to be delivered
through the pores of the skin. TR 04/29, at 124:6-17. The
City’s expert, Dr. Bryan Fuller, a skin biochemist, explained in
a manner that was scientific, sober, and most of all credible,
that these propositions, among other claims to the salutary
effects of some of Plaintiffs’ products, and diamond dust in
particular, are preposterous.
DE122at 5-6.
c.The Evidence That The City Enacted Ordinances
Which Are Narrowly Tailored And Leave Open
Alternative Channels Of Communication
The evidence established that the City reasonably enacted amended
ordinance 74-1 to prohibit commercial solicitation along sections of the public
rights-of-way of five streets in the City’s historic Art Deco District (Lincoln Road,
Ocean Drive, Collins Avenue, Washington Avenue, and Española Way) where
pedestrian traffic is most congested and the harm to the City’s substantial interests
most pronounced. The City also enacted amended ordinance § 46-92 to prohibit
commercial handbilling in the same limited area.
7
Forever Flawless diamond infused cosmetics are the main product sold at
both Forever Flawless and Timeless Cosmetics stores. DE.68-4; DE127-1.
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The evidence at the hearing demonstrated that the Ordinances are narrowly
drawn and leave open adequate alternative channels for commercial solicitation.
DE35-57at28-30. They regulated only 11.75% of the Art Deco Historic District,
and solicitation and handbilling are allowed in the rest of the City where there is
much less congestion. DE35-42; DE138-3at3,6. Other advertising is allowed in
the regulated zone, including but not limited to signage, billboards, and on Citi
Bikes. Tr.102-03(7/27/15,DE113). Commercial messages can also be broadcast
via the internet, and Plaintiffs’ products are all advertised there. ; DE35-57at37.
Id.
There are no restrictions on traditional forms of soliciting, such as mailings,
television, radio, magazines, newspapers, or shoppers.
Id.
The former Assistant City Manager testified that the City considered
alternative regulations to alleviate the solicitation and handbilling problems in the
District prior to the enactment of the Ordinances. Tr.100-02(7/27/15,DE113);
DE35-57at26-37. The evidence showed that these other alternatives were not
practicable and/or would not solve the problems caused by commercial solicitation.
For example, the City considered allowing commercial solicitation in a limited,
protective area a few feet around each pedestrian into which solicitors could not
approach. The City concluded that these “bubbles” would not work “due to the
difficulties that arise in connection with the enforcement of buffer zones in [dense]
high-traffic pedestrian areas where solicitation is a problem.” at 36 of 66;
Id.
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Tr.100-01(7/27/15,DE113). The City also assessed commercial solicitation boxes
or zones, but concluded those would not work because they would create a bazaar-
type atmosphere that was inconsistent with the unique ambiance of the District.
DE35-57at36of66; Tr.101-02(7/27/15,DE113). Also, the evidence showed that the
City had observed the use of boxes such as those placed in front of plaintiffs’
businesses before enactment of the amendments, and solicitors did not stay within
those confines. Tr.81(7/27/15,DE113); DE35-33at1,3,5. Finally, the City
considered prohibiting only aggressive or obnoxious solicitation, as the original
Ordinance had, but the evidence showed that did not work because it was
extremely expensive and difficult to enforce, and did not resolve the equally
serious and more prevalent problems created by less aggressive solicitation.
DE35-57at36of66; Tr.102(7/27/15,DE113).
7.The District Court Enters A Preliminary Injunction
Holding The Amended Ordinances Are Not “Narrowly
Tailored” But Rather Constitute A “Blanket Ban” On
Commercial Speech, And That The City Failed To Prove
The Solicitation Is Mostly False, Misleading, Or Related To
Unlawful Activity
The District Court preliminarily enjoined the City from enforcing its
commercial solicitation and handbilling ordinances. The Order acknowledged that
the four-part test governs because the activity regulated on the
Central Hudson
sidewalks of the District constitutes commercial speech. DE122at5 (holding
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Plaintiffs’ engagements with the public have one object: “to have prospects enter
their stores and purchase Plaintiffs’ products.”).
The District Court acknowledged that for commercial speech to be protected
by the First Amendment “it at least must concern lawful activity and not be
misleading.” DE122at5. The Court also concluded that “the City’s expert,
Dr. Bryan Fuller, a skin biochemist, explained in a . . . scientific, sober, and most
of all credible [manner] that these propositions, among other claims to the salutary
effects of some of Plaintiffs’ products, and diamond dust in particular, are
preposterous.” DE122at5-6. But apparently, overlooking its holding that the
purpose of the greetings on the street were solely “to have prospects enter their
stores and purchase Plaintiffs’ products,” the District Court nevertheless held that
the pretextual salutations on the street were not false or related to unlawful activity.
at 6.
Id.
The District Court next held that even if the fraudulent speech inside the
stores were relevant, the City had not demonstrated that Plaintiffs’ speech was
“mostly, or even often, misleading,” (DE122at7), although it is movants seeking a
preliminary injunction who have the burden to demonstrate their speech is “truthful
and not related to unlawful activity” to show a “substantial likelihood of success on
the merits.” And the record overwhelmingly demonstrated that Plaintiffs’ sales
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pitches were false and misleading, and according to the District Court –
“preposterous.”
The District Court found that the second and third prongs of the
Central
test were satisfied because the evidence showed that regulating
Hudson
commercial solicitation and handbilling served substantial governmental interests,
and that the ordinances advanced the government interests in a direct and material
way. DE122at10.
The trial judge concluded, however, that the Amended Ordinances did not
satisfy fourth prong because they were not “narrowly tailored”
Central Hudson’s
to achieve the substantial interests. The District Court ruled that the Amended
Id.
Ordinances constitute a disfavored “total ban” on commercial speech because “the
ordinance’s prohibition on solicitation is, , absolute –
within its geographical limits
all persons are prohibited from soliciting all persons.” DE122at12 (emphasis
added). The District Court reached this conclusion even though the Amended
Ordinances prohibit only face-to-face sidewalk solicitation, and only in less than
11.75% of the Art Deco District. Other forms of solicitation are permitted within
the regulated areas, and there are no restrictions in the rest of the City.
The trial court also held this Court’s decision in was not
Sciarrino
controlling because it declined to consider the actual text of the Key West
ordinance, and at Plaintiffs’ urging, misunderstood language from to
Sciarrino
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mean the Key West ordinance “significantly restrict[s], but [did] not ban[],
soliciting and handbilling on five historic streets,” while “Miami Beach’s
ordinance is a total ban on its selected historic streets.” DE122at14. But as shown
below, both ordinances prohibit hawking on portions of the most heavily congested
streets in the cities’ respective historic districts. And the Key West Ordinance,
which was upheld by this Court. is significantly more restrictive than the Amended
8
Ordinances.
STANDARD OF REVIEW
This Circuit generally reviews preliminary injunctions for an abuse of
discretion, but it reviews the legal conclusions on which they are based.
de novo
,522 F.3d 1153, 1166 (11th Cir. 2008);
Fla. Conference of NAACP v. Browning
,196 F.3d 1195, 1198 (11th Cir. 1999);
SEC v. Unique Fin. Concepts, Inc.Tefel v.
,180 F.3d 1286, 1295 (11th Cir. 1999). An abuse of discretion occurs if the
Reno
district court bases its decision on an erroneous factual premise.
See Chi. Trib. Co.
,263 F.3d 1304, 1309 (11th Cir. 2001);
v. Bridgestone/Firestone, Inc.Jones v. Int’l
49 F.3d 692, 694 (11th Cir. 1995); ,
Riding Helmets, Ltd., United States v. Varner
13 F.3d 1503, 1508 (11th Cir. 1994) (“Abuse of discretion occurs when the court
8
Plaintiffs argued the Amended Ordinances are unconstitutionally vague,
however, the District Court did not reach that issue. The City reserves the right to
address this point in its Reply Brief should Plaintiffs assert it on appeal.
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. . . bases its decisions upon considerations having little factual support.” (internal
quotation marks omitted)); 952 F.2d 367, 374
Arlook v. S. Lichtenberg & Co.,
(11th Cir. 1992) (same).
Ordinarily, factfindings that matter to the issuance of a preliminary
injunction are reviewed only for clear error, 196 F.3d at
Unique Fin. Concepts,
1198, but that changes in First Amendment free speech cases. Where the First
Amendment Free Speech Clause is involved, this Circuit’s review of the District
Court’s findings of “constitutional facts,” as distinguished from ordinary historical
facts, is , 451 F.3d
de novo. CAMP Legal Defense Fund, Inc. v. City of Atlanta
1257, 1268 (11th Cir. 2006) (“We review the district court’s determination of the
‘constitutional facts’ in a First Amendment case ” (citation and internal
de novo.
quotation marks omitted));
Coal. for the Abolition of Marijuana Prohibition v. City
, 219 F.3d 1301, 1316 (11th Cir. 2000) (same);
of AtlantaFalanga v. State Bar of
150 F.3d 1333, 1335 (11th Cir. 1998);
Ga.,Don’s Porta Signs, Inc. v. City of
829 F.2d 1051, 1053 n.9 (11th Cir. 1987) (“In cases involving [F]irst
Clearwater,
[A]mendment claims, an appellate court must make an independent examination of
the whole record” and “is not bound by the ‘clearly erroneous’ standard of
review.”);,
Am. Civ. Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd.
557 F.3d 1177, 1198, 1203 (11th Cir. 2009).
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SUMMARY OF THE ARGUMENT
Movants seeking a preliminary injunction to halt restrictions on commercial
speech must carry the burden of persuasion that they have a likelihood of success
on the merits. Under first prong, Plaintiffs had the burden of
Central Hudson’s
proving their commercial solicitation is not false, misleading, or related to
unlawful activity. Plaintiffs’ motion should have been denied because the
evidence demonstrated that they engage in coercive, pretextual, and misleading
solicitation in an integrated scheme to defraud tourists, thereby removing their
hawking from the scope of protected commercial speech.
Plaintiffs also failed to carry their burden of persuasion in a second
fundamental way. The law of this Circuit upholds municipal ordinances that
prohibit commercial solicitation, or even non-commercial expression, in limited
areas where the restrictions are narrowly tailored to directly advance substantial
governmental interests or are reasonable time, place, and manner restrictions which
leave open ample alternative channels of expression.
Sciarrino v. City of Key
, 83 F.3d 364 (11th Cir. 1996); , 272 F.3d 1318
WestHorton v. City of St. Augustine
(11th Cir. 2001); , 177 F.3d 954 (11th Cir. 1999).
Smith v. City of Ft. Lauderdale
The District Court held that the Amended Ordinances directly advance substantial
governmental interests, thereby satisfying two of the prongs of the
Central Hudson
test. But, the trial court erred in applying “total or blanket ban” cases like
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, and not following this Court’s precedent, to conclude the Amended
Edenfield
Ordinances were not sufficiently tailored to satisfy fourth prong.
Central Hudson’s
Finally, Plaintiffs did not show a substantial likelihood of success by arguing
facial overbreadth. The commercial handbilling Ordinance is not a facially
overbroad restriction of noncommercial handbills because the District Court
impermissibly read the word “commercial” outside of the definition and ignored
the clear commercial context of the ordinance as a whole. Moreover, and
Horton
make clear that restricting even noncommercial speech to less-problematic
Smith
portions of tourist hot-spots is permissible under traditional time, place, and
manner regulations.
ARGUMENT
A district court may grant preliminary injunctive relief only if plaintiffs
carry their burden of persuasion that: (1) they have a substantial likelihood of
success on the merits; (2) irreparable injury will be suffered unless the injunction
issues; (3) the threatened injury to the movants outweighs whatever damage the
proposed injunction may cause the City; and (4) if issued, the injunction would not
be adverse to the public interest. 234 F.3d 1163, 1176 (11th Cir.
Siegel v. LePore,
2000) (en banc).
Such relief is “an extraordinary and drastic remedy not to be granted unless
Plaintiffs clearly establish the burden of persuasion as to the four requisites.”
All
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887 F.2d 1535, 1537 (11th
Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc.,
Cir. 1989) (internal quotation marks and citation omitted). “Failure to show any of
the four factors is fatal, and the most common failure is not showing a substantial
likelihood of success on the merits.”
Am. Civ. Liberties Union of Fla., Inc. v.
, 557 F.3d 1177, 1198, 1203 (11th Cir. 2009);
Miami-Dade Cnty. Sch. Bd.Church
, 30 F.3d 1332, 1342 (11th Cir. 1994). Plaintiffs failed here.
v. City of Huntsville
I.THE PRELIMINARY INJUNCTION SHOULD BE REVERSED
BECAUSE PLAINTIFFS FAILED TO CARRY THEIR BURDEN OF
PERSUASION WITH RESPECT TO DEMONSTRATING A
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
Whether Plaintiffs carried their burden of proof as to showing a substantial
likelihood of success is governed by the test for determining the
Central Hudson
validity of a restriction on commercial speech, where “(1) the speech must be
truthful and concern lawful activity; (2) the government must have a substantial
interest in restricting the speech; (3) the regulation must directly advance the
asserted governmental interest and (4) the regulation must be narrowly tailored to
serve the governmental purpose.” ,, 867 F. Supp.
Sciarrino v. City of Key West
1017, 1020 (S.D. Fla. 1994), , 83 F.3d 364 (11th Cir. 1996) citing
aff’dCent.
9
447 U.S. 557 (1980).
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
9
The District Court correctly found that Plaintiffs’ hawking, to the extent it
is protected at all, is commercial speech subjected to the test.
Central Hudson
DE122at4;, 83 F.3d at 367. Moreover, though Plaintiffs’ characterize
Sciarrino
(footnote continued on next page)
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A regulation of commercial speech will be upheld so long as it is narrowly
tailored to directly advance substantial government interests, but it need not be the
least restrictive or intrusive means of doing so.
Bd. of Trustees of St. Univ. of N.Y.
, 492 U.S. 469, 480 (1989). Narrow tailoring requires only a ‘“fit’ between
v. Fox
the legislature’s ends and the means chosen to accomplish those ends,’ – a fit that
is not necessarily perfect, but reasonable; that represents not necessarily the single
best disposition but one whose scope is in proportion to the interest served.”
Id.
(citation omitted). The narrow tailoring requirement is satisfied “so long as the . . .
regulation promotes a substantial government interest that would be achieved less
effectively absent the regulation.” , 491 U.S. 781,
Ward v. Rock Against Racism
798-800 (1989) (citation omitted); ,
see also Metromedia, Inc. v. City of San Diego
453 U.S. 490, 528 (1981); ,468 U.S.
Clark v. Cmty. for Creative Non-Violence
288, 297 (1984). “[T]he regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately served by some less-
speech-restrictive alternative.” , 491 U.S. at 799.
Ward
The Supreme Court and the Eleventh Circuit have repeatedly reaffirmed that
a “government has a more significant interest in the aesthetics of designated
their challenge to the ordinances as primarily a facial challenge,
Tr.5(7/29/15,DE120), only an as-applied challenge is available to them.
See
, 377 F. Supp. 2d 1178,
Action Outdoor Advertising JV, L.L.C. v. Town of Shalimar
1182–88 (N.D. Fla. 2005).
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historical areas than in other areas.” , 975 F.2d
Messer v. City of Douglasville
1505, 1510-11 (11th Cir. 1992) (quoting
Penn Central Trans. Co. v. City of New
, 438 U.S. 104, 107-08 (1978)).
YorkOne World One Family Now v. City of Miami
, 175 F.3d 1282, 1288 (11th Cir. 1999) (“There is [] no question that the
Beach
city’s further interest in creating an aesthetic ambiance which will attract tourists to
the historic Art Deco district – which it considers ‘the economic lifeblood of the
city’ – is a substantial government interest, especially where, as here, a designated
historic area is at issue.”).
To that end, the record evidence reflects ten substantial interests, any of
which support the Amended Ordinances, including protecting the historic character
and aesthetic experience of the Art Deco District; promoting luxury tourism;
minimizing harassment of pedestrians along the public right-of-way; and
minimizing congestion and litter. DE122at7-8.
See
The District Court correctly found these interests substantial. at 7-9.
Id.
Citing the testimony of multiple witnesses (including Plaintiffs), the Court also
ruled that hawking in the historic district is harmful to the City’s substantial
interests as “it causes annoyance and aesthetic harm.” at 9. The District Court
Id.
also correctly found the Ordinance directly advanced the City’s legitimate
governmental interests. at 9-10.
Id.
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The District Court erred, however, in its ruling that Plaintiffs had carried
their burden of persuasion under ’s first and fourth prongs by
Central Hudson
incorrectly finding that Plaintiffs’ coercive, pretextual, and fraudulent sales pitches
are protected under the First Amendment, and by applying “blanket ban” cases
such as and its progeny instead of geographic restriction cases such as
Edenfield
,, and , which all hold local ordinances restricting
Sciarrino HortonSmith
solicitation and speech to the less congested portions of tourism-reliant historic
districts are narrowly tailored. These arguments are addressed in turn.
A.The Preliminary Injunction Should Be Reversed Because
Plaintiffs Failed To Carry Their Burden Of Persuasion On The
First Prong Of
Central Hudson
Plaintiffs’ First Amendment challenge fails on the first
Central Hudson
prong. At the outset, the Court “must determine whether the expression is
protected by the First Amendment. For commercial speech to come within that
provision, it at least must concern lawful activity and not be misleading.”
Central
, 447 U.S. at 566. If the “record indicates that a particular form or method
Hudson
of advertising has in fact been employed abusively, unlawfully, or deceptively”
then it is not protected, and the government may prohibit it without any further
analysis., 455 U.S. 191, 202 (1982); , 492 U.S. at 475 (“At the
In re R.M.J.Fox
outset, . . . [f]or commercial speech to come within [the protection of the First
Amendment], it at least must concern lawful activity and not be misleading);
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, 436 U.S. 447, 462 (1978); ,
Ohralik v. Ohio State Bar Ass’nFriedman v. Rogers
440 U.S. at 1 (1979). Plaintiffs bear the burden of persuasion at the preliminary
injunction stage, to prove that their commercial speech is truthful and related to
lawful activity. ACLU, 557 F.3d at 1198 (preliminary injunction should not be
granted unless “movant clearly establishes burden of persuasion as to the four
requisites”);, 150 F.3d 1333, 1338 n.12 (11th Cir.
Falanga v. State Bar of Ga.
1998) (government bears burden in justifying restrictions on commercial
protected
speech). However, the District Court reversed the burden of persuasion by holding
“the City has not demonstrated that Plaintiffs’ speech was mostly, or even often,
false or misleading.” DE122at7.
The record here established that Plaintiffs engage in coercive pretextual
hawking techniques to defraud tourists, harming the City’s admittedly substantive
interests.
The City Commission heard, and the District Court admitted, the testimony
of the City’s director of Tourism and Cultural Development, who testified that his
primary responsibility is to promote and protect the City’s flagship tourism
industry and that central to that role is protecting tourists as consumers. He
testified that the City’s visitors, and particularly those from foreign countries, have
an expectation that the local government will provide laws and regulations to
protect them from predatory and unfair commercial practices. Tourists are
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particularly susceptible to objectionable commercial practices because they are
often unfamiliar with local customs and are unable to immediately discern bad
conduct. DE35-47at12-13.
The record is replete with evidence that face-to-face hawking of commercial
goods and services in the Historic District is employed by Plaintiffs to scam
tourists enjoying the City’s promenades. The evidence established that Plaintiffs’
hawkers “appear to be very well trained mercenaries in their approach. They bully,
they shout, they heckle and they intimidate[] . . . .” DE35-58at30. The District
Court correctly found that Plaintiffs’ hawking of its products here was an integral
part of their scheme to get tourists into their stores to buy their fraudulently
advertised products. Plaintiffs admit that tourists are their targets, and testimony
established that non-English speakers are often double-teamed. Tr.58-
10
59(4/29/15,DE79); DE35-47at6-7.
The District Court found that Plaintiffs’ speech outside the store was
constitutionally protected because “[t]he most that anyone ever heard Plaintiffs’
greeters say outside their stores, on the public right-of-way, were the various
salutations, entreaties, and pleasantries described earlier, such as ‘[h]i, how are
10
Those tourists, who may be too embarrassed or unfamiliar with local
customs or languages to report the fraud, are unlikely to return to the City as a
tourist.
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you?’ and ‘[w]here are you from?” DE122at6. But the evidence in this case
established, and the District Court so found, that the purpose for the on-street
only
speech was to induce targets to enter the Plaintiffs’ stores to be defrauded. at 2.
Id.
Once inside, Plaintiffs market inexpensive cosmetics as containing diamond
powder and other precious gems and minerals. Plaintiffs’ hawkers falsely state the
cosmetics are healthcare products that treat skin diseases like acne and rosacea, can
reproduce the effects of the prescription drug BOTOX, can improve blood
circulation and reproduce collagen, and that the diamond powder supposedly
contained in the products can bind to other supposedly helpful medicines which
allows the cosmetics to penetrate the skin carrying the medication into the body.
DE58-4at2-3,7-8,12,21,42-43,46-50,56-58,72-74,87-90,94,130-31,139-42. None of
these claims are scientifically possible.
The unrebutted evidence also establishes that Shenfarber’s sales staff parrots
the claims made on the Forever Flawless website regarding their cosmetics’
purported ability to “reduce fever, fight infection, invigorate metabolism,
rejuvenate blood circulation, and help with many skin disorders.” DE58-5at5;
Tr.124 (4/29/15,DE79). The District Court correctly found that “[t]he City’s
expert, Dr. Bryan Fuller,” credibly testified that Plaintiffs claims about their
products “are preposterous.” DE122at5-6.
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The District Court correctly characterized Plaintiffs’ hawking on Lincoln
Road as an integrated scheme to get tourists into the store to hear the
“preposterous” sales pitch. DE122at2 (“Whatever its proper label, the purpose
See
of this behavior is clear: to get passers-by to bend their steps into Plaintiffs’ stores
to buy their products.”). However, the Court erroneously disregarded its own
finding that the “[h]i how are you?” interactions and the coercive tactics that
follow are part and parcel of the Plaintiffs’ false sales pitches, at 6.
seeid.
Therefore he should have ruled they are entitled to no First Amendment protection.
, 447 U.S. at 564 (Speech must be “neither misleading
See Central Hudsonnor
unlawful activity.”) (emphasis added).
related to
Instead, the District Court relied upon ’s holding that soliciting is
Edenfield
protected “where, as with the blanket ban involved here, truthful and
nonmisleading expression will be snared along with fraudulent or deceptive
commercial speech.” As explained below, the City’s limited geographic
restriction is not a “blanket ban.” But even if it were, the Court based
Edenfield
its holding upon one overarching premise: “[Plaintiff] seeks to communicate no
more than truthful, non-deceptive information proposing a lawful commercial
transaction.” 507 U.S. at 765. The Supreme Court did not hold (and no court has
ever held) that a Plaintiff who engages in fraud may still seek constitutional
protection for it, so long as the government does not establish that every word
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uttered by the Plaintiff is false. And the possibility that truthful and lawful
11
solicitors not before the Court may be impacted by the City’s ordinances does not
help Plaintiffs here because those concerns would transform the claim into a facial
overbreadth challenge, which is unavailable in a challenge to restrictions on
commercial speech. ,
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.
455 U.S. 489, 496–97 (1982) (“[T]he overbreadth doctrine does not apply to
commercial speech.”).
B.The Preliminary Injunction Should Be Reversed Because Its
Ruling That The Amended Ordinances Are Not Narrowly
Tailored Under The Fourth Prong Of Is Contrary
Central Hudson
To And Other Binding Precedent Of This Circuit
Sciarrino
The District Court erred in ruling that the City’s Amended Ordinances are
disfavored “total bans” on commercial speech under and its
Edenfield v. Fane
progeny rather than reasonably tailored geographic restrictions under ,
Sciarrino
, and .
HortonSmith
11
No evidence was presented in the District Court suggesting that anyone
hawks lawfully and truthfully in the Historic District. The only evidence presented
to the city commission and to the District Court suggested the opposite: restaurants
that employ hawkers in the historic district regularly defraud customers by offering
fraudulent “specials,” leading to massive bills at the end of the meal, DE35-
47at1,12-13; DE35-58at36-38, and night clubs that hawk in the Historic District
employ young attractive female hawkers to roam the City in order to entice male
tourists into clubs where their credit cards are charged for thousands of dollars for
nonexistent alcohol. DE35-47at12.
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1.Circuit Precedent Uniformly Upholds Restrictions On
Commercial Solicitation Within The Most Congested
Portions Of A City’s Historic District Because They Are
Narrowly Tailored To Directly Advance Substantial
Governmental Interests
The primary stated basis for the Preliminary Injunction is that the City may
not prohibit commercial solicitation in the most congested portions of five streets
within the Art Deco Historic District because that constitutes a “blanket ban”
rather than a narrowly tailored restriction directly advancing substantial City
interests. There is no authority supporting this ruling, and it is directly contrary to
, 83 F.3d 364; , 272 F.3d 1318; and , 177 F.3d 954.
SciarrinoHortonSmith
12
In,as here, the City of Key West, “in response to various
Sciarrino
complaints by pedestrians and property owners” about commercial solicitors
“operating within Key West’s historic district[,]” enacted an ordinance that
prohibited commercial solicitation and handbilling (defined as “Off-Premise
Canvassing” or “OPC”) on portions of the five most trafficked streets in its historic
district: Duval Street, Front Street, Clinton Square, Simonton, and Whitehead
12
Plaintiffs argued below that “Miami Beach is not Key West” in an attempt
to distinguish . However, Miami Beach and Key West are identical in
Sciarrino
relevant respects: both are small cities with less than 100,000 residents, both are
entirely tourism reliant, and both have similarly significant and congested historic
districts anchoring that industry. United States Census Bureau,
Economic-Wide
, “Miami Beach” and “Key West” (Feb. 16, 2016), http://factfinder.
Key Statistics
census.gov.
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Streets, as well as “on publicly-owned parking-lots, beaches and Mallory Dock.”
DE104-1 (Key West Ordinance 92-12), Addendum 3; , 867 Supp. at
Sciarrino
1019. Moreover, the ordinance strictly regulated soliciting in the rest of the city,
requiring permits limiting the number of solicitors for each business, where they
could stand, how close together they could operate, and requiring solicitors to pay
fees before operating anywhere else in Key West.
In, this Court upheld the ordinance when a store owner near the
Sciarrino
regulated zone who wished to solicit pedestrians to enter his store to buy products
sued, alleging the prohibition was an impermissible total ban and not narrowly
tailored in violation of the First Amendment., 867 F. Supp. at 1023. The
Sciarrino
district court disagreed because the ordinance did “not completely proscribe OPC
activity,” but merely “remove[d] OPC activity from the most congested
thoroughfares in the Historic District.” . at 1021. Sciarrino appealed, arguing
Id
the ordinance constituted a categorical ban on commercial speech because it
“prohibits the activity wherever tourists are found.” Reply Brief of Appellant, No.
95-4070, 1995 WL 17115931, at *11 (11th Cir. July 10, 1995). This Court
rejected that characterization, holding that while the ordinance “significantly
restricted” commercial solicitation within the city, “the city stopped short of
enacting an outright ban on OPC activity throughout the City.” 83 F.3d at 366,
370 n.8.
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Plaintiffs here concede that if the City adopted a plan analogous to the Key
West ordinance, the Amended Ordinances should be upheld. DE43at8 (“[T]he
See
Court was wise to [] uphold the Key West ordinance.”). Plaintiffs, however,
repeatedly urged upon the District Court an utterly unsupportable reading of the
Key West ordinance as solicitation with a permit in the portions of the
allowing
historic district where, in fact, the Key West ordinance it. DE43at2.
prohibited
In response, the City filed with the District Court the actual text of the Key
West OPC ordinance, a map of the streets and areas where soliciting in Key West
13
was prohibited, and record material from the litigation establishing that
Sciarrino
13
As is evident from this map, and to anyone who has visited Key West, the
five streets where solicitation is prohibited represent the epicenter of Key West’s
tourist economy and are the most heavily trafficked pedestrian streets. DE138-4.
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the District Court and this Court correctly read the ordinance’s prohibition when
14
the case was decided. Sworn testimony from Key West’s code compliance
director confirming that the City’s reading of the Key West ordinance was correct,
and the reading of the ordinance advocated by the Plaintiffs and adopted by the
Preliminary Injunction was plainly wrong. DE138-2; DE104.
The Key West ordinance upheld in is not nearly as narrowly
Sciarrino
tailored as the Amended Ordinances enacted by the City. Each municipality
restricts commercial solicitation and commercial handbilling (for similar
substantial reasons) on portions of the five most congested streets in their
respective historic districts, but the Key West ordinance also prohibited solicitation
in other areas, and imposed comprehensive restrictions on solicitation outside the
prohibited areas. Miami Beach Ord. § 74-1 with Key West Ord. § 92-12,
Compare
15
Sec. 94-06, Addendums 1 and 4.
14
The plaintiffs, like the Plaintiffs here, argued, “[t]he ordinance
Sciarrino
does not protect the right of privacy of pedestrians by prohibiting vexatious,
harassing or otherwise offensive commercial solicitation by off-premises
canvassers along Duval Street and in Mallory Square. It prohibits commercial
all
solicitation by off-premises canvassers along Duval Street and in Mallory Square.”
Brief of Appellant Sciarrino, No. 95-4070, 1995 WL 17059188, at 8-9 (11th Cir.
1995) (emphasis in original).
15
A side-by-side comparison of the relevant texts of the restrictions within
the Historic Districts was presented to the District Court at DE127at8; DE138-3;
Addendum 3.
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The preliminary injunction order acknowledged that it is bound by
. DE122at14. It held, however, that “[t]he Eleventh Circuit in
SciarrinoSciarrino
upheld [the] ordinance that it viewed as significantly restricting, but not banning,
solicitation and handbilling on five historic streets.” at 14. As demonstrated
Id.
above, the District Court’s characterization of is completely wrong.
SciarrinoSee
, 83 F.3d at 367-70 (discussing compelling interest and narrow tailoring
Sciarrino
16
of Key West Ordinance).
demonstrates that geographic prohibitions
Horton v. City of St. Augustine
even on non-commercial expression is lawful when restricted to special areas of
historic districts. 272 F.3d 1318 (11th Cir. 2001). In ,St. Augustine
Horton
enacted an ordinance that prohibited all street performances within portions of its
historic district, including the entirety of its main tourist boulevard. . at 1321.
Id
Plaintiff, a street musician, challenged the ordinance as vague, overbroad, and an
16
The District Court’s misunderstanding of stems in part from its
Sciarrino
erroneous belief that it could not consider the actual text of the ordinance affirmed
by this Court to determine the scope of those restrictions. DE122at14. Courts may
always consider public laws and record material to determine the
stare decisis
effect of prior decisions. , 114 U.S. 218, 223 (1885) (holding
See Lamar v. Micou
courts may take notice of public laws);
Annunziata v. Sch. Bd. of Miami-Dade
, 2005 WL 591205, at *3 (11th Cir. Mar. 4, 2005) (reviewing record excepts
Cnty.
to determine the factual basis for a case the court was applying because “the
published decision [of the case] did not detail the factual basis of its disposition”);
, 959 F.2d 1524, 1530 n.4 (11th Cir. 1992) (reviewing record
Presnell v. Zant
excepts from three other cases to determine that mercy jury instructions were given
in all three cases).
-42-
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invalid time, place and manner restriction and moved for a preliminary injunction.
. at 1322. St. Augustine argued that the restrictions were needed in its district
Id
“due to safety, noise, congestion, aggressive solicitation, and aesthetic harm caused
by the street performers,” presented evidence that its ordinance was a permissible
time, place, and manner restriction that was “narrowly tailored to serve a
significant government interest, namely guarding the aesthetic value of the historic
area while reducing pedestrian congestion,” and “left open ample alternative
channels for communications in other public and historic areas in the City.” . at
Id
1322-23.
This Court, applying a rationale which is expressly applicable to the less
protective commercial expression here, reversed and vacated a preliminary
injunction granted by the district court. . at 1334. St. Augustine’s ordinance was
Id
not unconstitutionally overbroad because the law “specifies a limited area in which
distinct types of expression and physical conduct – not all speech – may not take
place.”at 1332. There, the limited geographic regulation was a “legitimate
Id.
exercise of legislative authority” that did “not discriminate based on the viewpoints
or opinions of the street performers and promote[d] other enumerated municipal
purposes” and “le[ft] open a wide swath of public space for [plaintiff’s] activities
outside the enumerated four-block area.”. at 1333-34.
Id
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This Court explicitly recognized that, had St. Augustine prohibited
commercial, rather than expressive speech in , and had the Court analyzed
Horton
the ordinance under the less-stringent commercial speech test in ,
Central Hudson
“the result” – reversing the district court’s order granting plaintiff’s preliminary
injunction – “would be the same.”, 272 F.3d at 1334 n.20.
Horton
This Court’s decision in also supports
Smith v. City of Ft. Lauderdale
reversal of the Preliminary Injunction. There, Ft. Lauderdale determined that
panhandling, on the totality of a long five-mile stretch of the public beach and the
entirety of the two public sidewalks adjoining the beach, adversely affected
tourism. 177 F.3d 954, 956 (11th Cir. 1999). In response, the city enacted a
regulation prohibiting panhandling on the entirety of that long and unbroken
stretch of “quintessential public forum.”
Id.
The plaintiffs, like Plaintiffs here, “expressly concede[d] that the
Smith
City’s interest in providing a safe, pleasant environment and eliminating nuisance
activity on the beach is ‘a significant government interest.’” Plaintiffs there,
Id.
like here, argued, however, that the panhandling restrictions were not narrowly
tailored to serve that interest. at 957. This Court rejected that argument.
Id.Id.
First, this Court found that “soliciting” and “panhandling” are
interchangeable and assumed (without deciding) that panhandling was fully
protected speech while noting that if it were commercial speech, it would receive a
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“lower level of First Amendment protection.” . at 956 n.2, 957. Recognizing
Id
that Ft. Lauderdale allowed panhandling throughout much of the remainder of the
city, this Court rejected the plaintiffs’ argument that the rule was not narrowly
tailored due to “the possible availability of less-speech-restrictive alternatives.”
Id.
at 957. Plaintiffs there, like here, asserted that “the City’s interest might be served
by proscribing only hostile or aggressive begging or by confining begging to
specific parts of the beach.” Expressly rejecting this rationale, the Court
Id.
reiterated the well-established rule that the regulation need not be the “least
restrictive or least intrusive means of serving the City’s interest in order to qualify
as narrowly tailored.” . (quoting , 491 U.S. at 788–89). Applying that
IdWard
scrutiny to the panhandling at issue, this Court held,
The City has made the discretionary determination that begging
in this designated, limited beach area adversely impacts
tourism. Without second-guessing that judgment, which lies
well within the City’s discretion, we cannot conclude that
banning begging in this limited beach area burdens
‘substantially more speech than is necessary to further the
government’s legitimate interest.’
at 956 (citation omitted). This Court upheld the prohibition. at 957.
Id.Id.
2.The Evidence Showed That The Restrictions Are Narrowly
Tailored And Leave Open Adequate Alternative Channels
Of Communication
The District Court misapplied the law and disregarded the full record of
evidence when it found that “the City has failed to meet its burden” of
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demonstrating that its interest “cannot be protected adequately by more limited
regulation of [Plaintiffs’] commercial expression.” DE122at12-13. The evidence
established that the City took careful steps to ensure that its regulations, which
govern areas entirely contained in the Historic Districts, were narrowly tailored.
First, the regulated zone is small. It represents only 3% of the City and 11.75% of
the Art Deco Historic District. DE138-3at3,6; DE138-5at2. Second, each section
of each regulated street was carefully chosen and justified prior to enactment by
evidence presented to the City Commission that established regulations were
needed. DE35-47at1,12-24; Tr.76-87(7/27/15,DE113). Each regulated area is one
in which pedestrian traffic is heavily concentrated, complaints are generated, and
harm to the City’s interests are most pronounced. DE35-57at28-38.
The areas affected by the City regulations are already heavily regulated, and
many non-speech activities that interfere with the ability to enjoy a tranquil
pedestrian stroll are prohibited in the regulated zone. Motorized vehicles and
personal motorized vehicles are restricted. Code § 70-67. On Lincoln Road, the
City does not allow bicycles or skateboards. Code § 106-3. Tables at sidewalk
cafes must be precisely spaced to allow a free flow of pedestrian traffic. Code
§ 82-385. Despite these existing regulations, congestion remains and is
exacerbated by uncontrolled commercial hawking and handbilling.
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The District Court did not quibble with the geographic reach of the regulated
zone. DE122at11 (“True, the ordinance’s reach is limited . . . geographically
. . . .”). The Court impermissibly ignored the City’s past unsuccessful efforts to
regulate hawking as well as the alternative legislation it considered to lessen the
17
negative impact of commercial solicitation within the historic area.
The City has previously attempted numerous regulatory schemes to limit the
impact of commercial solicitation and handbilling. For example, in the past, the
City prohibited hawking throughout the City, but such a large geographic area
proved impossible to enforce with the City’s limited resources. DE35-47at17-
20,21-23; DE35-58at42-46; Tr.38-41(7/28/15,DE121). The City also tried
restricting only aggressive solicitation, but that did not solve the problem caused
by the volume of nonaggressive solicitation that a pedestrian would encounter
every few feet. Tr.80,96(7/27/15,DE113) (“death by paper cut”).
17
The District Court held the City should have allowed commercial hawking
and handbilling with permits within the regulated zone. The court’s suggestion,
however, would not eliminate the multitude of harms associated with the volume
and extent of commercial solicitation and handbilling in the Historic District and
would be difficult to enforce. Moreover, it is not within the District Court’s
purview to second guess the reasoned judgement of the City’s elected government
to enact its own laws merely because the “court concludes that the government’s
interest could be adequately served by some less-speech-restrictive alternative.”
, 177 F.3d at 956 (citing , 491 U.S. 781, 800
SmithWard v. Rock Against Racism
(1989)).
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The City’s varied and unsuccessful attempts to curb the harms associated
with commercial handbilling are just as exhaustive. It prohibited placing handbills
on parked cars, sought to only regulate “high impact weekends,” and transferred
enforcement authority from the police department to the code compliance
department – all in an attempt to curb the problems and in an attempt to gain better
enforcement capability. DE35-57at38. The City also previously attempted to
ameliorate the problem by prohibiting commercial handbilling within twenty feet
of a sidewalk café, DE35-57at27–28, but, as with all of these attempts, complaints
still rolled in. DE35; Tr.69-108(7/27/15,DE113).
Without acknowledging these past efforts, the District Court found the City
could and should have actually enacted other legislation before enacting the current
versions of § 74-1 and § 46-92(g). However, before enacting the current
regulations, the City considered other alternatives such as restricting solicitation
only within a designated two foot “bubble” around each pedestrian or limiting
hawkers to “solicitation boxes” (either in front of stores in the district or in other
locations on the promenade). DE35-57at36; DE35-58at50; Tr.87(4/29/15,DE79);
Tr.101-8,161-74(7/27/15,DE113).
The City rejected these alternatives after establishing that non-solicitation
bubbles around each pedestrian in the congested portions of the historic district
would be impossible to enforce, and that solicitation boxes, as evidenced by the
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many continuing written and verbal complaints, do not solve the problem and
create a visual blight that is inconsistent with the Historic District architecture of
which the famous Morris Lapidus designed black-and-white-striped sidewalks on
Lincoln Road are themselves an integral part. DE35-58at50–54.
The District Court relied upon the City’s limited allowance of fully protected
charitable and political solicitations, musical performances, and vending by artists
in the regulated zone as evidence that the City could and should have applied a
similar scheme here to allow commercial solicitation and handbilling. DE122at15.
In, the plaintiffs unsuccessfully advanced the same argument. There,
Sciarrino
plaintiffs pointed to the fact that Key West allowed some fully protected speech
activities as evidence that the prohibition on OPC activity in their most congested
area was not narrowly tailored:
[T]he ordinance did not apply to numerous business activities
which are actually conducted on the sidewalks of Duval Street.
The mimes, musicians, snake charmers, fortune tellers, hair
braiders and others were allowed to continue to operate on the
sidewalks, gathering crowds to watch their performances or
utilize their services.
Brief of plaintiff-appellant, , No. 95-4070, 1995
Sciarrino v. City of Key West
WL 17059188, at *14 (11th Cir. 1995). This Court rejected that argument.
, 83 F.3d at 369 n.7;
Sciarrinosee alsoDon’s Porta Signs, Inc. v. City of
, 829 F.2d 1051, 1053 (11th Cir. 1987) (“The Constitution does not
Clearwater
require the City to choose between curing all of its aesthetic problems or curing
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none at all.”); , 175 F.3d 1282, 1288 (11th Cir. 1995)
One World One Family Now
(city’s ordinance allowing restaurant but not vending tables on street was narrowly
tailored “[a]lthough there may be other ways to accomplish the city’s goals.”);
Jim
, 210 F.3d 1331, 1333 (11th Cir.
Gall Auctioneers, Inc. v. City of Coral Gables
2000) (holding prohibition on conducting and advertising auctions in residential
zone narrowly tailored despite city allowing garage sales, open houses, and
18
advertising related to those activities).
Similarly, this Court in and upheld geographic prohibitions on
SmithHorton
panhandling and performances, even though the codes of those cities illustrate that
they allow other speech activities in the same areas. For example, in , Ft.
Smith
Lauderdale prohibited panhandling on the beach despite allowing vending,
including for the sale of alcohol by permit. Ft. Lauderdale Code § 8-55. In
See
, St. Augustine prohibited street performances in portions of its historic
Horton
district despite granting parade permits, walking tours at certain hours, and
18
The District Court held that “[p]resumably, a charitable solicitor, who asks
pedestrians if they would like to save Lolita the whale, is no less annoying than
one of Plaintiffs’ greeters, who asks pedestrians if they would like a free
demonstration.” DE122at15. Evidence presented to the Commission and the
District Court established, however, the exactly opposite. Specifically, that the City
received hundreds of complaints about commercial solicitors and none regarding
non-commercial political speech, or religious, charitable, or political solicitation.
DE35-13at3-11; DE35-15; DE35-16; DE35-47; Tr.68-107(7/27/15,DE113);
See
Tr.28-61(7/28/15, DE121).
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newspaper vending through machines. St. Augustine Codes § 22-11,
See
19
§ 22-15(d); § 24-170.
The District Court also found the City’s regulations do not provide adequate
alternative avenues for commercial speech, despite the fact that the undisputed
evidence in the case established that multiple alternatives are available to the
Plaintiffs and others to advertise their products.
The most obvious alternative is that each of the Plaintiffs are free to hawk
their wares in the stores or on sidewalks just a few blocks away from where they
wish to solicit, because the regulated zone is small. Indeed, the entirety of the City
(outside the most sensitive area at issue here) remains open to the Plaintiffs.
,, and all hold that this fact alone establishes, as a matter of
SciarrinoHortonSmith
law, the adequacy of the available alternative channels of commercial speech
available here. , 83 F.3d at 370; ,272 F.3d at 1331–33; , 177
SciarrinoHortonSmith
F.3d at 957.
Moreover, within the regulated zone, businesses may convey their
commercial messages on lighted billboard-type signs that are leased for that
purpose. DE35-57at37. Businesses may also disseminate their message, subject to
lawful restrictions of type and size, on signage on their building and in their
19
St. Augustine also prohibits commercial solicitation outright.
St. Augustine Code § 22-7.
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windows. On a permit basis, sampling of Plaintiffs’ products is allowed.
Id.
Tr.39-42(4/29/15,DE79) Commercial entities are free to purchase advertising
space in newspapers of all kinds from publishers that have a permit to place a
newsstand on City streets (or, alternatively, to seek a permit to place a newsstand
to distribute their own newspaper). DE35-57at37. Businesses may also advertise
via video monitors displayed within their storefront windows, on local television
and radio stations, the Internet, and on locational services such as Yelp and
Facebook.
Id.
These alternative channels of commercial solicitation are numerous and
adequate.
See Interstate Outdoor Adver., L.P. v. Zoning Bd. of Twp. of Mount
, 706 F.3d 527, 535 (3d Cir. 2013) (adequate alternative channels of
Laurel
communication include on-premises signs, internet advertising, direct mail, radio,
newspapers, television, advertising circulars, advertising flyers, commercial
vehicle sign advertising, and public transportation advertising). Yet, the District
Court based its rejection of the adequacy of these alternatives upon Plaintiffs’ self-
serving testimony that tourists are the target market and that Plaintiffs’ salespeople
must be allowed to stand on the sidewalk directly in front of their stores and solicit
tourists to enter their stores in order for them to make money. The District Court
was also persuaded by Moti Shenfarber’s self-serving testimony that traditional
advertising would not work for his three stores on Lincoln Road because a single
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previous attempt to send a mass unsolicited marketing e-mail to an undefined list
of e-mail addresses did not yield positive results, and a solitary advertisement
placed in a magazine had not increased sales. Tr.38-39(4/29/15,DE79). The other
Plaintiff never attempted any alternative marketing, soliciting, or advertising,
although a manager testified that he did not think anything else would allow them
to reach tourists. Tr.160-61,170-71(7/2715, DE113)
.
There is simply no authority of any kind, however, that would support the
proposition that a business must be allowed to engage in commercial speech
detrimental to the City because that mode of solicitation is the one the business
deems to be most effective for making a profit. In fact, a wealth of authority
rejects the proposition. , 177 F.3d at 957 (“Rule 7.5’s suppression of
See Smith
begging in the Ft. Lauderdale Beach area is materially mitigated by the allowance
of begging in streets, on sidewalks, and in many other public fora throughout the
City[.]”); , 618 F.2d 252, 259 n.18
Am. Future Sys., Inc. v. Pennsylvania St. Univ.
(3d Cir. 1980) (“the First Amendment [does not] require[] that a seller in all
instances be able to use the techniques he considers most effective.”); ,
Metromedia
453 U.S. at 497 (upholding city’s right to prohibit billboards, even “[i]f enforced as
written, Ordinance [] will eliminate the outdoor advertising business in the City of
San Diego.”).
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3.The Preliminary Injunction Must Be Reversed Because It
Mistakenly Applies Total Ban Precedent To Find The
Limited Geographic Restrictions Imposed By The Amended
Ordinances Are Not Narrowly Tailored
Despite,, and ’s rejection of the argument, the
SciarrinoHortonSmith
District Court concluded the Amended Ordinances constitute a disfavored “blanket
ban” on expression, DE122at11, principally relying on , 945 F.2d
Fane v. Edenfield
1514, 1517 (11th Cir. 1991), , 507 U.S. 761 (1993), as well as
aff’dShapero v.
, 486 U.S. 466 (1998); , 447 U.S. at 566; and
Kentucky Bar Ass’nCentral Hudson
, 471 U.S. 626
Zauderer v. Office of Disciplinary Counsel of Supreme Ct. of Ohio
(1985). Those cases invalidated broad blanket bans on speech throughout an entire
jurisdiction not justified by any substantial governmental interests, and none
support the finding of a disfavored blanket ban here.
involved a total ban on personal solicitation in any form, whether
Edenfield
face-to-face, by telephone, or by letter, of potential clients by CPAs throughout the
state of Florida. 507 U.S. at 763. The ordinance here restricts only one type of
solicitation in a small part of the City. DE138-1at2–6; DE35-42. Moreover, here
the ordinance undisputedly directly advances several substantial government
interests, DE122at9, none of which were implicated in
Edenfield.
Similarly, in , the New York Public Service Commission
Central Hudson
“ordered electric utilities in New York State to cease that
all advertising
‘promot[es] the use of electricity.’” 447 U.S. at 558 (emphasis supplied). The
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Court struck down this statewide categorical ban. Such precedent does not support
invalidating the limited geographic restrictions the City seeks to place on one
method of commercial solicitation.
Theanddecisions also invalidated categorical bans: those
ShaperoZauderer
on lawyers’ letters to potential clients and lawyers’ written advertisements,
20
respectively, throughout the entire state jurisdictions involved.
Plaintiffs also mistakenly urged the court below to find that the City’s
regulation is a total ban because, according to them, the City bans solicitation in
the entirety of its historic districts. DE138at3. Plaintiffs claimed, “[r]ather than
imposing a complete ban on solicitations in its historic districts, Miami Beach
could have prohibited solicitation only where congestion was the heaviest[.]”
DE133at3–4. In fact, the Amended Ordinances regulate only 5.7% of the historic
districts, which constitutes just 11.75% of the Art Deco District. DE138-1at3. The
evidence established that the portions of the streets selected for regulation the
were
20
Just as importantly, in , the Supreme Court
Ohralik v. Ohio State Bar Ass’n
ruled a “State may categorically ban” in-person, face-to-face solicitation by
lawyers of clients for profit because of the potential for overreaching and
intimidating conduct in such sales efforts. 436 U.S. 447 (1978). The District
Court here, by contrast, mistakenly relied on cases that struck down total bans on
written solicitations and advertising by lawyers to potential clients throughout a
state but that upheld bans on face-to-face in-person solicitation by lawyers, to
conclude a limited geographic restriction on face-to-face solicitation is a
disfavored total ban.
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most congested, trafficked, and historically significant. DE35-58;
See generally
DE35-47at9–16.
Forced to acknowledge that the Ordinances regulate only a small part of the
historic districts, Plaintiffs subsequently argued that “the City’s Ordinances are a
complete ban ” because their stores are
as far as these Plaintiffs are concerned
within the regulated area. DE133at4 (emphasis added). No authority of any kind,
however, supports this formulation of a disfavored total ban on commercial speech,
and,, and explicitly reject it.
SciarrinoHortonSmith
Even while citing these cases, the District Court acknowledged the
geographically-limited reach of the Amended Ordinances – representing only a
small portion of the District, a small subsection of a small city – and that only a
single form of solicitation is regulated. DE122at11. The Court nonetheless found
that the regulations represented a total ban by being “not limited in critical
respects.”
Id.
None of these “critical” distinctions convert the City’s limited geographic
restriction on face-to-face solicitation into a total ban, and no reference or support
can be found in case law for that contention. In fact, the reverse is true.
Seesupra
at pp. 38-46 (discussing ’s approval for geographic
Sciarrino, Horton, and Smith
limitations on speech)The Ordinances do not distinguish between invited or
.
uninvited solicitations, DE122at12, or solicitations involving persons who know
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each other and those who don’t, , because these considerations are not relevant
id.
to reducing pedestrian congestion, preserving aesthetics, or other acknowledged
substantial interests served by the Amended Ordinances, nor would such
exceptions be enforceable. Whether the solicitors are businesses or not bears no
relation to whether the solicitation is commercial. . The Amended Ordinances
Id
do not distinguish between truthful solicitation and false solicitation because the
former is subject to regulations such as the Amended Ordinances, and the latter is
entirely unprotected and unlawful. The Amended Ordinances are not limited
Id.
to solicitation that is loud, vexatious, harassing, or impedes traffic because the
prior ordinances addressing these problems did not work. Finally, the
Id.
proposition that the prohibition on solicitation of pedestrians on the sidewalk may
not be evaded by standing in a store’s doorway does not make the limited
21
geographic restriction a “total ban.”
21
The Plaintiffs and the District Court erroneously attached significance to
the City’s restriction on hawking from just inside a business’ doorway of
pedestrians on the promenade. Cities regularly and appropriately regulate behavior
originating on private property that impacts adjoining public property. ,
See, e.g.
Code § 138-71 (prohibiting certain storefront signs and video screens that display
toward the promenade). ,, 492
See, e.g.Bd. of Trustees of State Univ. of N.Y. v. Fox
U.S. 469 (1989) (approving university regulation that prohibits commercial speech
in private student dorm rooms); , 453 U.S. 490
Metromedia, Inc. v. San Diego
(1981) (finding municipal ban on commercial billboards or signs on private
property meets test, but total ban on non-commercial billboards
Central Hudson
does not.); , 485 F.3d 736 (3d Cir. 2007) (holding city
Riel v. City of Bradford
(footnote continued on next page)
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The notion that a restriction within a particular location makes it a total ban
would convert every time, place, and manner restriction or geographic restriction
into a total ban, because they inherently prohibit the speech activity within the
specified area. That is not the law.
C.The Handbill Ordinance Is Not Facially Overbroad
As noted in Part I, a facial challenge is unavailable in a challenge to a
restriction of commercial speech. , 455 U.S. at 496–97 (1982).
Hoffman Estates
1.The Commercial Handbill Ordinance Addresses Only
Commercial Speech
The commercial handbill ordinance prohibits commercial handbilling only
in the regulated portion of the City’s Art Deco Historic District. “
Commercial
” is defined in the Ordinance as “any handbill that conveys any
handbill
information about any good or service provided by a .” Miami Beach
business
Code § 46-92(a)(4) (emphasis added). Addendum 2. The District Court concluded
the Ordinance was overbroad because, according to its reading, the definition of
commercial handbill was broad enough to restrict fully protected noncommercial
expression protesting against a business. DE122at19. The conclusion is incorrect
and contrary to , which rejected the argument that an ordinance barring
Sciarrino
ordinance regulating the display of commercial signs on private property
constitutional under the First Amendment).
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the “or solicitation . . . on a publicly owned right of way
distribution of information
” reached noncommercial speech. 867 F. Supp. at
in connection with a business
1020 n.2 (emphasis added).
This Circuit has held that municipal ordinances must “be read and placed in
the context of the overall law.” , 272 F.3d at 1331. Here, the Ordinance,
Horton
relevantly titled “. . . penalties for litter and commercial handbill violations;
commercial handbill regulations . . .” considered as a whole, makes clear that its
prohibition is only intended to apply to handbills soliciting a commercial
transaction. And the Court’s Order improperly ignores the ordinary meaning of the
defined term “commercial handbill” by reading out the term “commercial.”
The U.S. Supreme Court recently addressed an analogous statutory scheme,
and rejected the lower Court’s failure to consider the ordinary meaning of the
defined term:
We are reluctant to ignore the ordinary meaning of ‘chemical
weapon’ when doing so would transform a statute passed to
implement the international Convention on Chemical Weapons
into one that also makes it a federal offense to poison goldfish.
That would not be a ‘realistic assessment[ ] of congressional
intent.’
, 134 S. Ct. 2077, 2091–92 (2014). Because the ordinary meaning of
Bond v. U.S.
the term “commercial handbill” is clear, the Court erred in ignoring it.;
Id.see also
, 2007 WL 1128965, at *2 (M.D.
CNL Hotel & Resort, Inc. v. Houston Cas. Co.
Fla. Apr. 16, 2007) (agreeing that “[w]hile interpreting the defined term ‘loss,’
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the definition of the word ‘loss’ cannot be read to ignore the word ‘loss’ itself,
since doing so would completely eviscerate the meaning of the word.”) (citation
omitted).
Finally, the record in the court below established that no one distributing
noncommercial handbills of any kind (including those protesting against a
business) has ever been cited for violating the Handbill Ordinance. Tr.68–
107(7/27/15,DE113); Tr.28–61(7/28/15,DE121). Nor did any witness testify that
he or she did not understand what handbills are proscribed under the City’s
ordinance.
2.Even If The Commercial Handbill Ordinance Could Be
Read To Restrict Distribution Of Commercial And
Noncommercial Handbills On Lincoln Road, The Handbill
Ordinance Would Still Be A Valid Time, Place, And
Manner Restriction Under And
HortonSmith
Assuming, , that the Handbill Ordinance restricted noncommercial
arguendo
speech, it remains a permissible exercise of the City’s authority. The District
Court cited no authority of any kind suggesting that a geographic restriction on the
location in a City’s historic district where a particular mode of fully protected
noncommercial speech may occur is facially overbroad, which is not surprising,
because there is none. But substantial binding authority holds the opposite.
, 272 F.3d at 1334;,177 F.3d at 956;
Horton Smithsee alsoGlobe Newspaper Co.
, 100 F.3d 175, 182-83, 186-87 (1st Cir.
v. Beacon Hill Architectural Comm’n
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1996) (city ordinance prohibiting use of newsracks in historic district was narrowly
tailored to advance City’s interest in maintaining the aesthetics of the District);
, 334 F. Supp. 2d 35, 42-43 (D. Mass. 2004)
Hop Publ’ns, Inc. v. City of Boston
(same).
First, a finding of facial overbreadth is inappropriate here because the
ordinance can be constitutionally applied to restrict Plaintiffs’ commercial
handbilling, failing the Supreme Court’s test set forth in that “the
Salerno
challenger must establish that no set of circumstances exists under which the Act
would be valid.” , 272 F.3d at 1329 (quoting , 481 U.S. 739,
HortonU.S. v. Salerno
745 (1987)).
Moreover, the commercial handbilling ordinance is not a prior restraint on
speech, taking it outside the general set of regulations to which this Court has
applied facial overbreadth analysis in the first instance.
Id.
Most importantly, however, in traditional public fora, such as the city streets
and sidewalks, this Court permits governments to “enforce regulations of the time,
place, and manner of expression which are content-neutral, are narrowly tailored to
serve a significant government interest, and leave open ample alternative channels
of communication.” , 177 F.3d at 956. Both and establish that
SmithHorton Smith
a City may restrict fully protected noncommercial speech to the less congested and
less nettlesome portions of its tourist districts if it allows space outside the
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regulated zones for the restricted mode of speech. And the City here has left the
entirety of the rest of the City for anyone to distribute commercial or
noncommercial handbills. at pp. 13-14.
Seesupra
II.THE PRELIMINARY INJUNCTION SHOULD BE REVERSED
BECAUSE PLAINTIFFS HAVE FAILED TO CARRY THEIR
BURDEN OF PERSUASION WITH RESPECT TO THE
REMAINING ELEMENTS OF THE PRELIMINARY INJUNCTION
TEST
A.The Plaintiffs Will Suffer No Irreparable Injury Because They
Did Not Established A Likelihood Of Success On The Merits Of
Their First Amendment Challenge
It is well settled that “in the context of an alleged violation of First
Amendment rights, a plaintiff’s claimed irreparable harm is ‘inseparably linked’ to
the likelihood of success on the merits of the plaintiff’s First Amendment claim.
, 553 F.3d 292, 298
WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave
(4th Cir. 2009). Since Plaintiffs did not establish a likelihood of success on the
merits of their First Amendment claims, they cannot make the requisite showing of
irreparable harm. , 748 F.3d 682, 697
Id.See alsoLiberty Coins, LLC v. Goodman
98 (6th Cir. 2014) (plaintiff could not establish irreparable harm when they were
not likely to succeed on the merits of the First Amendment challenge).
B.The Injury To The City From Enjoining Enforcement Of Its
Ordinances Far Outweighs Any Harm To The Plaintiffs
The record below shows that the City has multiple substantial interests in
preventing harm to its Historic District and that the commercial hawking restricted
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by the Amended Ordinances directly threatens those interests. On the other hand,
the enforcement of the Amended Ordinances will only minimally interfere with the
plaintiffs’ commercial activities, since a variety of alternative channels of
commercial communication remain open to them. The Amended Ordinances
prohibit solicitation and handbilling on only the most sensitive portions of five
streets within the District. Plaintiffs are free to solicit throughout the remainder of
the City. Moreover, a variety of alternative channels of commercial
communication remain available to businesses within the regulated zone itself,
including billboards, signs, newsstands, television, radio, and the internet.
Accordingly, the injury to the City from enjoining enforcement of the ordinances
far outweighs any harm to the plaintiffs. , 748 F.3d at 698
SeeLiberty Coins, LLC
(Where there is a proper “fit” between the government regulation and licensing
ordinance, the enjoining of the regulation would cause substantial harm to
government interests.).
C.An Injunction Prohibiting Enforcement Of The Amended
Ordinances Would Greatly Injure The Public Interest
As explained above, the City has several important governmental interests
which are advanced by the regulation of commercial hawking and handbilling
within a small section of the Art Deco Historic District, including protecting the
historic character of the District, protecting tourism, minimizing harassment of
pedestrians and preserving their rights of privacy, and minimizing congestion and
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litter. On the other hand, the Amended Ordinances do not impermissibly burden
Plaintiffs’ First Amendment rights. Accordingly, an injunction prohibiting
enforcement of the Ordinances would greatly injure the public interest.
SeeLiberty
, 748 F.3d at 698 (whether a regulation advanced substantial
Coins, LLC
government interest and does not impermissibly burden a constitutional right, an
injunction would injure the public interest).
CONCLUSION
For the foregoing reasons, the preliminary injunction entered by the District
Court should be reversed.
Dated: March 11, 2016 Respectfully submitted,
/s/ Robert F. Rosenwald, Jr.
Robert F. Rosenwald, Jr. (Fla. Bar #190039)
First Assistant City Attorney
robertrosenwald@miamibeachfl.gov
Donald M. Papy (Fla. Bar #204471)
Chief Deputy City Attorney
yamilexmorales@miamibeachfl.gov
RAUL J. AGUILA, CITY ATTORNEY
CITY OF MIAMI BEACH
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Telephone: ( 305) 673-7470
Facsimile: (305) 673-7002
-64-
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Richard J. Ovelmen (Fla. Bar #284904)
rovelmen@carltonfields.com
Enrique D. Arana (Fla. Bar #189316)
earana@carltonfields.com
Justin S. Wales (Fla. Bar #99212)
jwales@carltonfields.com
Namrata Joshi (Fla. Bar #105267)
njoshi@carltonfields.com
CARLTON FIELDS JORDEN BURT, P.A.
Miami Tower, Suite 4200
100 S.E. Second Street
Miami, Florida 33131
Telephone: (305) 530-0050
Facsimile: (305) 530-0055
Attorneys for Appellant City of Miami Beach
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
FRAP 32(a)(7)(B) because this brief contains 13,820 words, excluding the parts of
the brief exempted by FRAP 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of FRAP 32(a)(5) and
the type style requirements of FRAP 32(a)(6) because this brief has been prepared
in proportionally spaced typeface using Microsoft Word in Times New Roman
14-point font.
/s/ Robert F. Rosenwald, Jr.
Robert F. Rosenwald, Jr.
Florida Bar No. 190039
-66-
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of March, 2016, I caused the
foregoing to be electronically filed using the Court’s CM/ECF system, which will
provide service on all counsel of record, including those identified below, via
Notice of Docket Activity generated by CM/ECF:
Daniel R. Aaronson Gary S. Edinger
danaaron@bellsouth.net gsedinger@aol.com
Benjamin, Aaronson, Edinger Benjamin, Aaronson, Edinger
& Patanzo, P.A. & Patanzo, P.A.
One Financial Plaza, Suite 1615 305 N.E. 1st Street
Ft. Lauderdale, Florida 33394 Gainesville, Florida 32601
Telephone: (954) 779-1700 Telephone: (352) 338-4440
Facsimile: (954) 779-1771 Facsimile: (352) 337-0696
Counsel for AppelleesCounsel for Appellees
/s/ Robert F. Rosenwald, Jr
Robert F. Rosenwald, Jr.
Florida Bar No. 190039
104815145
-67-
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Addendum 1
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Addendum 2
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Miami Beach, Florida Code of Ordinances
Sec. 46-92. - Litter; definitions; prohibitions on litter; penal
commercial handbill regulations, fines, and rebuttable presumpti
city; enforcement; appeals; liens.
(a) Definitions. The following words, terms and phrases, when us
meanings ascribed to them in this section, except where the cont
meaning:
(1) Benefactor means the owner of the business advertised in the
agent, employee, contractor, promoter, or other representative d
discarding, placing or depositing.
(2) Business means any commercial or industrial activity, entity
or services are made, sold or offered for sale or other consider
(3) Handbill means any handbill, flyer, paper, document, dodger,
card, pamphlet, sheet, poster, sticker, banner, notice or other
or object that conveys any information, except that "handbill" s
its contents.
(4) Commercial handbill means any handbill that conveys any info
service provided by a business.
(5) Litter means any paper, handbill, commercial handbill, garba
tobacco products, including, but not limited to, used and unused
chewing tobacco, polystyrene or plastic products, or other waste
tree, plant, and grass cuttings, leaves, or other yard maintenan
or deposited on a public sidewalk, street, road, avenue, beach,
wall, boardwalk, beachwalk, baywalk, cutwalk, park, or in a gutt
other public property, right-of-way or place, or on any object l
the kneewall, window ledge or sill of any public or private buil
any other type of private real or personal property. Handbills a
to a trash receptacle, but not within the trash receptacle in th
considered litter.
(6) One day means a 24-hour period from noon to noon.
(7) Person, benefactor, or owner include, within their respectiv
an entity.
(8) Right-of-way means and includes, but is not limited to, any
street, sidewalk, street corner, curb, bicycle path, or pedestri
(9) Polystyrene means a thermoplastic polymer comprised of at le
methylstyrene by weight.
(10) Expanded polystyrene means blown polystyrene and expanded a
thermoplastic petrochemical materials utilizing a styrene monome
number of techniques including, but not limited to, fusion of po
foam), injection molding, foam molding, and extrusion-blown mold
polystyrene).
(b) Litter prohibited. It shall be unlawful for any person or be
or cause to be thrown, discarded, placed, or deposited, litter i
or on any public highway, sidewalk, road, street, alley, thoroug
beachwalk, cutwalk, sidewalk cafe areas, or any other public pla
lawfully provided therefor. It shall be unlawful for any person
garbage, cans, bottles or containers in or on any freshwater lak
coastal waters within the city. In addition, it shall be unlawfu
t m;
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or deposit litter in any manner or amount whatsoever on any priv
including, but not limited to, sidewalk cafe furniture and fixtures, unless prior consent of the owner
has been given and unless such litter will not cause a public nu
state or local laws, rules or regulations.
(c) Prohibitions on beaches, marinas, piers, docks, boat ramps,
person to carry onto any beach within the city a glass or metal
container. In addition, it shall be unlawful for any person to c
onto any beach or park within the city, or onto any city marina,
business to provide plastic straws with the service or delivery
beach within the city.
(d) Prohibitions on causing litter in sewers and on public and p
person to use leaf blowers, or any other means, to sweep, cast o
thrown, or discarded into any of the gutters, drains, sewers, or
upon any adjacent public or private real or personal property, a
trash, tree, plant, or grass cuttings, leaves, yard maintenance
(e) Garbage container requirements for restaurants. All restaura
to four garbage containers, as need requires, based on the deter
designee. The containers shall be located in front of and within
premises at locations approved by the city manager or his design
in clean and sanitary condition at all times and shall be emptie
to prevent overflowing. The garbage containers required by this
required by chapter 90 of this Code.
(f) Penalties for violations. The following civil fines shall be imposed for violations of this section except
as provided in subsection (h) below:
(1) First offense: $50.00 fine.
(2) Second offense: $100.00 fine.
(3) Third or subsequent offense: $500.00 fine.
In lieu of a fine, the special master may accept voluntary commu
equivalent to one hour of community service for each $5.00 of an
is not completed within six months of an adjudication of guilt,
(g) Prohibitions on commercial handbill distribution.
(1) Historic areas. It shall be unlawful for any person to distr
of-way in any of the following areas in the City of Miami Beach:
a. The area bounded on the north by, but not including, 17th Str
but not including, Washington Avenue, bounded on the south by Li
bounded on the west by Alton Road;
b. Ocean Drive from 5th to 15th Streets;
c. Collins Avenue from 5th to 15th Streets;
d. Washington Avenue from 5th to Lincoln Road;
e. All cross streets and bystreets bounded on the north by 15th
by Ocean Drive, bounded on the south by 5th Street, and bounded
Washington Avenue;
f. Española Way from Pennsylvania Avenue to Collins Avenue; and
g. Lummus Park.
The prohibitions of this subsection (g) shall apply to the distr
any right-of-way, including, but not limited to, any doorway, st
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of a building abutting on or adjacent to such right-of-way. All
prohibited areas shall include the entire width of the right-of-
(2) Sidewalk cafes. Commercial handbills shall not be distribute
a. Within 20 feet in any direction from the outside perimeter of
(as indicated in the approved site plan attached to the city-iss
b. On any right-of-way within the approved sidewalk cafe.
(3) Beaches. Commercial handbills shall not be distributed on an
(h) Penalties for commercial handbill violations. If a violation
placing, or depositing, or causing to be thrown, discarded, plac
handbills as litter in violation of subsection (b), or resulted
following civil fines shall be imposed. The special master shall
prescribed penalties except as to the per handbill fine of $50.0
(1) If the offense is the first offense, $100.00 fine, plus $50.
subsection (b);
(2) If the offense is the second offense within the preceding 12
per handbill for a violation of subsection (b);
(3) If the offense is the third or subsequent offense within the
plus $50.00 per handbill for a violation of subsection (b);
(4) Notwithstanding subsections (h)(1)(3), no person or benefac
offense within any one-day period, however, the $50.00 per handbill fine shall apply to all
littered handbills found during that one-day period for a violat
(i) Commercial handbill presumption. At any prosecution for viol
involved is a commercial handbill, if ten or more commercial han
are found in plain view as litter under circumstances that make
commercial handbills were placed there, or caused to be placed t
contractor, promoter, or other representative of the business advertised on the face of the
commercial handbills, the special master shall apply a rebuttabl
advertised on the face of the handbills threw, discarded, placed
handbills as litter.
(j) Securing of commercial handbill litter by the city. If a per
handbills, the code compliance officer is authorized to seize, f
of the violator before the special master, all commercial handbi
(k) Removal of litter by the city. The city may cause the remova
distributed or placed in violation of this section.
(l) Enforcement by code compliance officers; notice of violation. If a code compliance officer finds a
violation of this article, such code compliance officer shall is
provided in chapter 30. The notice shall inform the violator of
fine for which the violator may be liable, instructions and due
violation may be appealed by requesting an administrative hearin
notice of violation, and that failure to do so shall constitute
of the right to a hearing.
(m) Rights of violators; payment of fine; right to appeal; failu
(1) A violator who has been served with a notice of violation sh
a. Pay the civil fine in the manner indicated on the notice; or
b. Request an administrative hearing before a special master app
commission upon recommendation of the city manager to appeal the
compliance officer which resulted in the issuance of the notice of violation.
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(2) The procedures for appeal by administrative hearing of the n
forth in sections 102-384 and 102-385 of the City Code.
(3) If the named violator after notice fails to pay the civil fi
administrative hearing before a special master, the special mast
failure by report from the code compliance officer. Failure of t
decision of the code compliance officer within the prescribed ti
waiver of the violator's right to administrative hearing before
right to an administrative hearing shall be treated as an admiss
may be assessed accordingly.
(4) Any party aggrieved by the decision of the special master ma
accordance with law.
(n) Recovery of unpaid fines; unpaid fines to constitute a lien;
(1) The city may institute proceedings in a court of competent j
fines.
(2) A certified copy of an order imposing a civil fine may be re
thereafter shall constitute a lien upon any other real or person
and it may be enforced in the same manner as a court judgment by
including levy against the personal property, but shall not be d
except for enforcement purposes. After two months from the filin
remains unpaid, the city may foreclose or otherwise execute upon
(o) Planning board authority. Nothing in this article shall limit or restrict any condition or limitat
imposed by the planning board.
(p) Injunctive relief. As an additional means of enforcement, the city may seek injunctive relief and/or
follow procedures to revoke a business tax receipt and/or certif
14, 18 and 102 of the City Code when there are more than three o
a calendar year.
(Code 1964, § 3-7; Ord. No. 94-2913, § 1(3-7), 3-16-94; Ord. No.
3644, § 1, 7-15-09; Ord. No. 2010-3708, § 1, 11-17-10; Ord. No. 2012-3759, § 1, 4-11-12; Ord. No. 2014-
3884, § 1, 7-23-14; Ord. No. 2014-3903, § 1, 11-19-14; Ord. No. 2015-3923, § 1, 2-11-15)
Cross reference
Public property, ch. 82; beaches generally, § 82-436 et seq.
t m;
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Addendum 3
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Comparison of Key West and Miami Beach Ordinances
Key West Ordinance 92-12, Sec. 94-06 Miami-Beach Ordinance Sec. 74-1
Sec. 94.06 Off-premise canvassing Sec. 74-1. – Soliciting business in public.
regulations in the Historic District
Any person engaging in off-premise (a)Prohibitions.It shall be unlawful to solicit
canvassing in the Historic District shall abide any person for the purpose of inducing such
by the following restrictions: person to purchase any property, real or
personal, or any food, beverage or service, or
a) Off-premise canvassers on Duval Street are
to solicit such person to enter any place of
subject to the following setback requirements;
business for the purpose of inducing or
1) No OPC may operate on the public
attempting to induce such person to purchase
sidewalk of Duval Street between the Atlantic
any property, real or personal, or any food,
Ocean on the South and the Gulf of Mexico on
beverage or service…in any of the following
the North or Front Street or the public
areas in the City of Miami Beach:
sidewalk within twenty-five (25) feet of any
(1) The area bounded on the north by, but not
cross street where intersecting or bisecting
including, 17th Street, bounded on the east by,
Duval Street or Front Street.
but not including, Washington Avenue,
2) No OPC may operate on the sidewalk
bounded on the south by Lincoln Lane, and
or City owned property located on Wall Street,
bounded on the west by Alton Road;
Exchange Street, Fitzpatrick Street, or the area
(2) Ocean Drive from 5th to 15th Streets;
known as Clinton Square including that
portion of Whitehead Street between Green
(3) Collins Avenue from 5th to 15th Streets;
Street and Front Street.
(4) Washington Avenue from 5th to Lincoln
b) OPC’s on Whitehead Street, Simonton Road;
Street, and cross streets between Whitehead
(5) All cross streets and bystreets bounded on
Street, Duval Street and Simonton Street are
the north by 15th Street, bounded on the east
subject to the following regulations when
by Ocean Drive, bounded on the south by 5th
located between Angela Street on the south
Street, and bounded on the west by
and the Gulf of Mexico on the north.
Washington Avenue;
1) OPC’s operating on public sidewalks
(6) Española Way from Pennsylvania Avenue
shall be located at street corners only.
to Collins Avenue[]; and
2) No more than one (1) OPC of any one
(7) Lummus Park.
business may operate on the sidewalk within
one hundred (100) feet of another OPC from
the same business, located on public
property[.]
102521189
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CASE NOS.: 15-14394-AA / 15-15256-AA
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
CITY OF MIAMI BEACH, FLORIDA,
Appellant,
-vs-
FF COSMETICS FL INC., d/b/a Forever Flawless Cosmetics 1, et. al
Appellees.
ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
L.T. CASE NO.: CASE NO. 14-22072-CIV-JLK
BRIEF FOR THE MIAMI-DADE COUNTY LEAGUE OF CITIES AS
AMICUS CURIAE SUPPORTING REVERSAL IN FAVOR OF
APPELLANT
Craig E. Leen,
City Attorney
Board Certified by the Florida Bar in
City, County and Local Government Law
City of Coral Gables
405 Biltmore Way
Coral Gables, Florida 33134
Tel.: (305) 460-5218
Fax: (305) 460-5264
Attorneys for Amicus Curiae, Miami-Dade
County League of Cities
Case: 15-14394 Date Filed: 03/18/2016 Page: 2 of 25
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel, as counsel for the Amicus Curiae, hereby certifies,
pursuant to Fed. R. App. P. 26.1 and Eleventh Circuit rule 26.1-1, that to the best
of his knowledge and belief, the following is a list of all persons and entities that
may have an interest in the outcome of this appeal:
Aaronson, Daniel R. (Counsel for Plaintiffs/Appellees)
Aguila, Raul J. (City Attorney, City of Miami Beach, Defendant/Appellant)
Arana, Enrique D. (Counsel for Defendant/Appellant)
Benjamin, Aaronson, Edinger & Patanzo, P.A. (Counsel for
Plaintiffs/Appellees)
Benjamin, James S. (Counsel for Plaintiffs/Appellees)
Brilliance New York, LLC, f/k/a Brilliance New York, Inc.
(Plaintiff/Appellee)
Byers, Scott E. (Counsel for Defendant/Appellant)
Carlton Fields Jorden Burt,P.A.(Counsel for Defendant/Appellant)
City of Miami Beach (Defendant/Appellant)
Edinger, Gary Scott (Counsel for Plaintiffs/Appellees)
FF Cosmetics FL Inc., d/b/a Forever Flawless Cosmetics 1
(Plaintiff/Appellee)
Kairalla, Jason Patrick (Counsel for Defendant/Appellant)
King, James Lawrence (District Judge, Southern District of Florida)
Leen, Craig E. (Counsel for Amicus Curiae)
C-1 of 2
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Miami-Dade County League of Cities (Amicus Curiae for City of Miami
Beach)
Oceane FL Cosmetics Inc., d/b/a Tresor Rare (Plaintiff/Appellee)
Ovelmen, Richard J. (Counsel for Defendant/Appellant)
Papy, Donald M. (Counsel for Defendant/Appellant)
Rosenwald, Jr., Robert (Counsel for Defendant/Appellant)
Timeless Cosmetics FL Inc. (Plaintiff/Appellee)
Wales, Justin S. (Counsel for Defendant/Appellant)
CORPORATE DISCLOSURE STATEMENT
Not applicable.
s/Craig E. Leen
Craig E. Leen
C-2 of 2
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STATEMENT REGARDING ORAL ARGUMENT
The Miami-Dade County League of Cities (the "League") submits that oral
argument is necessary for appellate review of the instant cause. This case involves
a municipality's authority to regulate commercial speech in historically designated
areas of the City of Miami Beach (the “City”). Accordingly, this case has far
reaching implications for the municipalities within Miami-Dade County that seek
to exercise their police power by enacting regulations similar to the City’s
ordinances at issue here. Accordingly, the League respectfully submits that the
decisional process will be aided by oral argument.
i
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TABLE OF CONTENTS
Page
OF INTERESTED PERSONS ....................................................C-1
CERTIFICATE
CORPORATE DISCLOSURE STATEMENT .....................................................C-2
STATEMENT REGARDING ORAL ARGUMENT ............................................... i
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF ISSUE ON APPEAL ................................................................... 1
INTEREST OF THE MIAMI-DADE COUNTY LEAGUE OF CITIES ................. 1
SUMMARY OF THE ARGUMENT ........................................................................ 2
ARGUMENT ............................................................................................................. 3
I. MUNICIPALPOLICEPOWERINCLUDESTHE
AUTHORITYTOENACTORDINANCESPROTECTING
THEHEALTH,SAFETY,ANDWELFAREOFTHE
COMMUNITY ...................................................................................... 3
A. The City's Ordinances Were a Proper Exercise of
its Police Power to Protect the Aesthetics of its Art
Deco Historic District as Well as the Health,
Safety, and Welfare of its Residents, Tourists, and
Visitors ........................................................................................ 3
B. This Court's Precedent Permits Municipalities to
Enact Ordinances Regulating Speech and Conduct
in Designated Areas of a City ..................................................... 4
II. THEORDINANCESAREREASONABLETIME,PLACE
ANDMANNERREGULATIONSOFSPEECHAND
CONDUCTINTHECITY'SARTDECOHISTORIC
DISTRICT ............................................................................................. 8
A. The Ordinances are Content-Neutral .......................................... 8
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TABLE OF CONTENTS
Page
B. The Ordinances are Narrowly Tailored to Serve a
Significant Governmental Interest ............................................ 10
C. The Ordinances Allow for Reasonable Alternative
Channels of Communication..................................................... 12
CONCLUSION ........................................................................................................ 13
CERTIFICATE OF COMPLIANCE ....................................................................... 14
CERTIFICATE OF TYPEFACE COMPLIANCE ................................................. 15
CERTIFICATE OF SERVICE................................................................................ 16
iii
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TABLE OF AUTHORITIES
CASES Page
Burk v. Augusta-Richmond Cty.,
365 F. 3d 1247 (11th Cir. 2004) ...................................................................... 8
,
CAMP Legal Def. Fund, Inc. v. City of Atlanta
451 F. 3d 1257 (11th Cir. 2006) .................................................................... 12
Chad v. City of Fort Lauderdale, Fla.,
861 F. Supp. 1057 (S.D. Fla. 1994) ................................................................. 9
FF Cosmetics FL Inc v. City of Miami Beach, Fla.,
2015 WL 5145548 (S.D. Fla. 2015) .............................................. 4, 10, 11, 12
Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640 (1980)......................................................................................... 8
.,
Horton v. City of St. Augustine, Fla
272 F. 3d 1318 (11th Cir. 2001) ...................................................................... 6
,
International Caucus of Labor Committees v. City of Montgomery
111 F. 3d 1548 (11th Cir. 1997) ...................................................................... 7
,
Kovacs v. Cooper
336 U.S. 77 (1949) ........................................................................................... 3
Lamar Advert. of Mobile, Inc. v. City of Lakeland, Fla.,
980 F. Supp. 1455 (M.D. Fla. 1997) ......................................................... 5, 10
Members of the City Council of the City of Los Angeles
,
v. Taxpayers for Vincent
466 U.S. 789 (1984)............................................................................. 4, 10, 11
,
Messer v. City of Douglasville, Ga
975 F. 2d 1505,1510 (11th Cir. 1992) ....................................................... 4, 10
.,
Metro. Life Ins. Co. v. Mass
471 U.S. 724 (1985)......................................................................................... 3
iv
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TABLE OF AUTHORITIES
CASES Page
,
One World One Family Now v. City of Miami Beach
175 F. 3d 1282 (11th Cir. 1999) ................................................................ 4, 10
,
Resort Development Int'l, Inc. v. City of Panama City Beach
636 F. Supp. 1078 (N.D. Fla. 1986) ................................................................ 7
,
Sciarrino v. City of Key West
83 F. 3d 364 (11th Cir. 1996) ...................................................................... 5, 6
.,
Smith v. City of Fort Lauderdale, Fla
177 F. 3d 954 (11th Cir. 1999) .................................................................... 6, 7
,
Solantic, LLC v. City of Neptune Beach
410 F. 3d 1250 (11th Cir. 2005) ...................................................................... 8
,
Ward v. Rock Against Racism
491 U.S. 781 (1989)......................................................................... 8, 9, 10, 11
CITY ORDINANCES
Section 46-92, City of Miami Beach Code of Ordinances ...............................
passim
Section 74-1, City of Miami Beach Code of Ordinances .................................
passim
CITY CODES
Section 94.03, Key West Florida Code ...................................................................... 5
Section 94.05, Key West Florida Code ...................................................................... 5
v
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STATEMENT OF ISSUE ON APPEAL
Whether an ordinance enacted pursuant to a municipality's police power
to remedy problems resulting from commercial solicitation and handbilling in
certain designated areas is a valid time, place, and manner regulation under the
First Amendment.
INTEREST OF THE MIAMI-DADE COUNTY LEAGUE OF CITIES
The League is a county-wide organization consisting of 34 municipalities
throughout Miami-Dade County. The League was established in 1953 for the
purpose of promoting local self-government so that its members can ensure a good
quality of life for their residents and visitors. Accordingly, the League is vitally
interested in advocating for the rights of municipalities to pass laws such as
sections 74-1 and 46-92 of the City Code of Ordinances (the "Ordinances") which
are designed to protect the aesthetics of their historically designated areas, as well
as to promote the health, safety, and welfare of their residents, tourists, and
visitors.
The issues presented in this case bring directly into question the authority of
municipalities to protect the public's health, safety and welfare through local
ordinances and regulations within historically designated areas. The League
therefore has a strong interest in the legal standards applying to this type of
1
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regulation, and respectfully requests the Court to reverse the district court's order
below.
No counsel for a party authored this brief in whole or in part and no person
or entity other than the League, its members, or its counsel made a monetary
contribution in connection with its preparation or submission.
SUMMARY OF THE ARGUMENT
Like the City, the League and its members are troubled by the type of
hawking, soliciting, and handbilling employed by businesses such as Appellees,
and the negative impacts resulting from it. Those negative impacts include the
harassment of pedestrians, the invasion of pedestrians' privacy rights, congestion of
sidewalks and roadways, and litter. Here, the record is replete with instances in
which visitors to the City's Art Deco historic district, an international tourist
destination, are subjected to being chased down the street, having their movements
physically impeded, and being grabbed, dragged, and threatened with physical
harm by Appellees' employees.
The City enacted sections 46-92 and 74-1 to ameliorate the foregoing
problems and to enhance the public health, safety, and welfare of its residents,
tourists, and visitors. The prohibition of commercial solicitation and handbilling is
limited to the Art Deco historic district and Appellees are free to engage in such
activity in the remaining parts of the City.
2
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The League submits that the Ordinances are constitutionally valid time,
place, and manner regulations of Appellees' solicitation and handbilling in the Art
Deco historic district. Therefore, the district court's order should be reversed and
vacated.
ARGUMENT
I. MUNICIPAL POLICE POWER INCLUDES THE AUTHORITY
TO ENACT ORDINANCES PROTECTING THE HEALTH,
SAFETY, AND WELFARE OF THE COMMUNITY
A. The City's Ordinances Were a Proper Exercise of its
Police Power to Protect the Aesthetics of its Art Deco
Historic District as Well as the Health, Safety, and
Welfare of its Residents, Tourists, and Visitors
A bedrock principle of American law is that the States and its people possess
sovereign legislative authority to pass local laws for the well-being of their
communities. That authority is often referred to as its "police power."
"The police power of a state extends beyond health, morals and safety, and
comprehends the duty, within constitutional limitations, to protect the well-being
and tranquility of a community. A state or city may prohibit acts or things
reasonably thought to bring evil or harm to its people." 336 U.S.
Kovacs v. Cooper,
77, 83 (1949); 471 U.S. 724, 756 (1985) ("The States
Metro. Life Ins. Co. v. Mass.,
traditionally have had great latitude under their police powers to legislate as to the
protection of the lives, limbs, health, comfort, and quiet of all persons.") (internal
quotation omitted).
3
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Here, the City identified multiple problems resulting from individuals
engaging in hawking and handbilling in its Art Deco historic district.
Consequently, sections 74-1 and 46-92 of the City of Miami Beach Code (the
"Ordinances") were enacted by the City to promote tourism to the historic district,
minimize harassment of pedestrians, protect pedestrians' privacy rights, and
minimize congestion and litter. , 2015
FF Cosmetics FL Inc v. City of Miami Beach
WL 5145548, *5 (S.D. Fla. 2015).
Because the City had the sovereign authority to pass the Ordinances, and the
Ordinances did not contravene the First Amendment, the District Court erred in
concluding that the Ordinances were unconstitutional.
B. This Court's Precedent Permits Municipalities to
Enact Ordinances Regulating Speech and Conduct in
Designated Areas of a City
It is well settled that a municipality may exercise its police powers to
advance aesthetic interests and to promote public safety.
See e.g., Members of the
, 466 U.S. 789,
City Council of the City of Los Angeles v. Taxpayers for Vincent
805 (1984); , 975 F. 2d 1505,1510 (11th Cir.
Messer v. City of Douglasville, Ga.
1992) ("It is well settled that the state may legitimately exercise its police powers
to advance its aesthetic interests" and "A government has more significant interest
in the aesthetics of designated historical areas than in other areas.");
One World
, 175 F. 3d 1282, 1288 (11th Cir. 1999)
One Family Now v. City of Miami Beach
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("There is also no question that the city's further interest in creating an aesthetic
ambiance which will attract tourists to the historic Art Deco district—which it
considers 'the economic lifeblood of the city'—is a substantial government interest,
especially where, as here, a designated historic area is at issue.");
Lamar
, 980 F. Supp. 1455, 1459
Advertising of Mobile, Inc. v. City of Lakeland, Fla.
(M.D. Fla. 1997) ("It is well settled law that a municipality may exercise its police
powers to advance aesthetic interests and to promote public safety.").
Indeed, on several occasions this Court has upheld legislation which
prohibited speech and conduct in certain designated areas as a valid exercise of
municipal police power. For example, in , 83 F.
Sciarrino v. City of Key West, Fla.
3d 364, 366 (11th Cir. 1996), the City of Key West enacted an ordinance, similar
to sections 46-92 and 74-1, banning businesses from distributing handbills to
pedestrians and engaging in face-to-face advertising on public beaches, on Mallory
Dock, and in public parking lots. Key West Fl. Code § 94.05 Such activity was
Id.
also significantly restricted, but not banned, on five historic streets heavily
frequented by pedestrians. . § 94.03. Key West enacted the ordinance in order to
Id
reduce litter, sidewalk congestion, and invasions of pedestrians' privacy.
Id.
This Court concluded that the ordinance was a valid exercise of the City's
authority to preserve the aesthetics of the community, prevent harassment of
pedestrians by commercial solicitors, and reduce litter. at 367-369.
Id.
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Additionally, this Court held that the ordinance did not reach further than
necessary because it "evidence[d] a careful effort on the part of the City to draw a
balance between the commercial speech rights of the proprietors and the problems
the Ordinance addresses." at 370.
Id.
Next, in , 272 F. 3d 1318, 1320 (11th Cir.
Horton v. City of St. Augustine
2001), the City enacted an ordinance which prohibited street performances, a
constitutionally protected form of speech, in a four-block area of the City's historic
district. The City's goal, among other things, was to prevent congestion, aggressive
solicitation, and aesthetic harm caused by street performers. at 1323.
Id.
This Court concluded that the ordinance did not violate the First Amendment
because:
[t]he City's restriction of street performances within a
four-block area of an historic district satisfies this First
Amendment analysis and is a legitimate exercise of
legislative authority. On its face, Section 22–9, as
originally enacted and as amended, does not discriminate
based on the viewpoints or opinions of the street
performers and promotes other enumerated municipal
purposes…. It is also adequately tailored to serve the
proffered justification of crowd and traffic control….
Furthermore, it leaves open a wide swath of public space
for Horton's activities outside the enumerated four-block
area. [CITATIONS OMITTED].
at 1333-1334.
Id.
Finally,, 177 F. 3d 954, 955 (11th Cir.
Smith v. City of Fort Lauderdale, Fla.
1999) involved a municipal ordinance prohibiting panhandling, another
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constitutionally protected form of speech, on a five-mile strip of beach and two
public sidewalks. The ordinance was enacted "to eliminate nuisance activity on the
beach and provide patrons with a pleasant environment in which to recreate."
Id.
This Court held that the ordinance was narrowly tailored to serve those interests:
[t]he City has made the discretionary determination that
begging in this designated, limited beach area adversely
impacts tourism. Without second-guessing that judgment,
which lies well within the City's discretion, we cannot
conclude that banning begging in this limited beach area
burdens "substantially more speech than is necessary to
further the government's legitimate interest."
at 956 (citation omitted);
Id.see also, International Caucus of Labor Committees v.
, 111 F. 3d 1548 (11th Cir. 1997) (upholding a policy banning
City of Montgomery
the placement of tables on any city sidewalk which affected political organization's
ability to distribute its literature to passersby);
Resort Development Int'l, Inc. v.
, 636 F. Supp. 1078 (N.D. Fla. 1986) (holding that
City of Panama City Beach
ordinance prohibiting commercial solicitation on sand beaches was a reasonable
time, place, and manner regulation).
Each of the aforementioned cases recognize that municipalities have the
inherent authority to promote public safety and to protect the aesthetics of the
community from harms caused by otherwise constitutionally protected forms of
speech, by prohibiting such speech in the areas harmed by it. Here, because the
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City properly exercised similar authority, the district court's order should be
reversed and vacated.
II. THE ORDINANCES ARE REASONABLE TIME, PLACE AND
MANNER REGULATIONS OF SPEECH AND CONDUCT IN
THE CITY'S ART DECO HISTORIC DISTRICT
The United States Supreme Court has recognized that the First Amendment
does not guarantee the right to communicate a person's views at all times and
places or in any manner that may be desired. See,
Heffron v. International Society
, 452 U.S. 640, 647 (1981). Accordingly, the
for Krishna Consciousness, Inc.
government may impose reasonable time, place, or manner restrictions on
protected speech, even in a public forum, as long as the restrictions: (1) are content
neutral; (2) are narrowly tailored to serve a significant government interest; and (3)
leave open ample alternative channels for communication of the information.
Ward
, 491 U.S. 781, 791 (1989).
v. Rock Against Racism
The City's Ordinances satisfy this test.
A. The Ordinances are Content-Neutral
To determine whether an ordinance is content-neutral, this Court generally
looks to the terms of the ordinance to see if it "distinguish[es] favored speech from
disfavored speech on the basis of the ideas or views expressed."
Solantic, LLC v.
, 410 F. 3d 1250, 1259 and n. 8 (11th Cir. 2005);
City of Neptune BeachBurk v.
, 365 F. 3d 1247, 1254 (11th Cir. 2004) (explaining that
Augusta-Richmond County
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a content-neutral ordinance is one that "applies equally to all, and not just to those
with a particular message or subject matter in mind.").
Even if a regulation incidentally affects some speakers or messages but not
others, it nonetheless qualifies as content-neutral if it serves purposes unrelated to
the content of the expression. , 491 U.S. at 791.
Ward
The City's Ordinances are content-neutral. Because section 74-1 makes it
"unlawful to solicit person" and section 46-92 makes it "unlawful for
anyany
person to distribute handbills on the right-of-way," the Ordinances apply
evenhandedly to all those who wish to induce a person to purchase property, food,
1
beverage, or service on the several designated streets of the City's historic District.
, 861 F. Supp. 1057, 1063 (S.D. Fla.
See e.g. Chad v. City of Fort Lauderdale, Fla.
1994) (holding that an ordinance banning panhandling along the city's beach and
adjacent sidewalk was held content neutral because it applied evenly to all persons
regardless of their agenda).
Furthermore, their principal purpose is to protect the economic vitality of the
Art Deco historic district – a purpose unrelated to the content of commercial
solicitation and handbilling. Therefore, because the Ordinances do not distinguish
1
Those streets are: Lincoln Road, Ocean Drive from Fifth to Fifteenth Streets,
Collins Avenue from Fifth to Fifteenth Streets, Washington Avenue from Fifth
Street to Lincoln Road, Espanola Way from Pennsylvania Avenue to Collins
Avenue, and Lummus Park. (Section 74-1, City of Miami Beach Code of
Ordinances; Section 46-92, City of Miami Beach Code of Ordinances).
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between favored and disfavored speech on the basis of the ideas or views
expressed, and serve a purpose unrelated to the content of expression, they are
content-neutral.
B. The Ordinances are Narrowly Tailored to Serve a
Significant Governmental Interest
The District Court specifically found "that solicitations and handbilling in
Miami Beach's historic district is a problem that exists in fact, and that it causes
annoyance and aesthetic harm." , 2015 WL 5145548, *6. The
FF Cosmetics FL Inc.
District Court also found that section 74-1 directly advanced the City's interests in
remedying those problems. Accordingly, it is not reasonably disputed that the
Id.
City has a significant interest in using its police powers to preserve the aesthetic
values of the Art Deco District, and protecting its residents and visitors from
annoyance.,, 466 U.S. at 805; , 975 F. 2d at
See e.g.Taxpayers for VincentMesser
1510;, 175 F. 3d 1288;
One World One Family NowLamar Advertising of Mobile,
, 980 F. Supp. at 1459.
Inc.
Next, the Ordinances are narrowly-tailored to serve the City's interests of
promoting public safety and preserving the aesthetics of its historic District. A
restriction is narrowly-tailored "so long as the … regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation."
, 491 U.S. at 798. Furthermore, an ordinance which completely bans speech
Ward
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is narrowly tailored if it targets and eliminates no more than the exact source of the
"evil" it seeks to remedy. , 466 U.S. at 808-810.
Taxpayers for Vincent
Contrary to the concern expressed by the District Court, 2015 WL
5145548,*8-11, a municipality does not have to show that the ordinance is the least
restrictive or least intrusive means of furthering its interests. , 491 U.S. at
Ward
799.
For example, in the Supreme Court upheld an
Taxpayers for Vincent
ordinance that banned all signs on public property because the aesthetic interest
supporting the regulation rendered each sign an evil. Consequently, a complete
prohibition was necessary because "the substantive evil—visual blight—[was] not
merely a possible byproduct of the activity, but [was] created by the medium of
expression itself." , 466 U.S. at 810.
Taxpayers for Vincent
Here, the Ordinances are necessary to eliminate the substantive evil –
harassment of pedestrians, invasion of privacy, congestion, and litter – which the
District Court agreed is created by commercial hawking and handbilling.
FF
, 2015 WL 5145548 at *6.
Cosmetics FL Inc.
Finally, the Ordinances do not ban all commercial solicitation and
handbilling in the entire City; nor do they ban it in the entire historic District.
Rather, they set out specifically defined sections of streets where commercial
solicitation and handbilling are prohibited. This is a narrowly tailored regulation
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which serves the significant government interest of protecting the economic
vitality of the Art Deco District without regard to point of view. The regulation
leaves open the vast majority of the city for people, including Appellees, to engage
in commercial solicitation and handbilling. Under these circumstances, the
regulation does not burden more speech than is necessary to achieve this important
governmental interest and thus satisfies the second prong.
Accordingly, the Ordinances serve a significant government interest in
protecting the Art Deco historic district from the negative secondary effects of
solicitation and handbilling and are narrowly tailored to serve that interest.
C. The Ordinances Allow for Reasonable Alternative
Channels of Communication
The District Court concluded that "the City has failed to meet its burden of
demonstrating the inadequacy of less-intrusive alternatives" to the Ordinances.
FF
., 2015 WL at *7-8. However,"[t]he Constitution requires only
Cosmetics FL Inc
that [the government] leave open an alternative channel of communication, not the
alternative channel of communication [a particular speaker] desires."
CAMP Legal
, 451 F. 3d 1257, 1282 (11th Cir. 2006).
Def. Fund, Inc. v. City of Atlanta
Here, the prohibition on commercial solicitation and handbilling merely
applies to a small area of the City comprising its historic district. Section 74-1,
See
City of Miami Beach Code of Ordinances; Section 46-92, City of Miami Beach
Code of Ordinances. Businesses such as Appellees would still able to use signs and
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window displays, advertise on the internet, radio, and television, and solicit
customers in the rest of the City. Therefore, because the ordinances do not prohibit
Appellees from soliciting potential customers or distributing their handbills from
any other location within the City, the Ordinances do not deny Appellees ample
alternative channels for expression of commercial speech.
CONCLUSION
For the reasons set forth above, the Miami-Dade County League of Cities
respectfully requests that this Court: (1) reverse the District Court's Order granting
Appellees' Renewed Motion for Preliminary Injunction; and (2) vacate the
preliminary injunction entered by the District Court.
Respectfully submitted,
s/Craig E. Leen
Craig E. Leen, City Attorney – FBN 701696
Board Certified by the Florida Bar in
City, County and Local Government Law
City of Coral Gables
405 Biltmore Way
Coral Gables, Florida 33134
Tel.: (305) 460-5218
Fax: (305) 460-5264
cleen@coralgables.com
Attorneys for Amicus Curiae, Miami-Dade
County League of Cities
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
FRAP 32(a)(7)(B). This brief contains 2,837 words.
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CERTIFICATE OF TYPEFACE COMPLIANCE
Counsel for Amicus Curiae, Miami-Dade County League of Cities certifies
that this Amicus Brief is typed in 14 point (proportionately spaced) Times New
Roman.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY
that on March 18th, 2016, I electronically uploaded
the foregoing document with the Clerk of the Court using CM/ECF. I also certify
that the foregoing document is being served this day on all counsel of record or pro
se parties identified on the attached service list in the manner specified.
s/Craig E. Leen
Craig E. Leen
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SERVICE LIST
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NOS.:15-14394-AA / 15-15256-AA
Raul J. Aguila, City Attorney
Robert F. Rosenwald, Jr., First Assistant City Attorney
City of Miami Beach
th
1700 Convention Center Drive, 4 Floor
Miami Beach, Florida 33139
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
E-mail: robertrosenwald@miamibeachfl.gov
Counsel for Appellant
Daniel R. Aaronson, Esq.
Benjamin, Aaronson, Edinger & Patanzo, P.A.
One Financial Plaza, Suite 1615
Ft. Lauderdale, Florida 33394
Telephone: (954) 779-1700
Facsimile: (954) 779-1771
E-mail: danaaron@bellsouth.net;
Counsel for Appellees
Gary S. Edinger, Esq.
Benjamin, Aaronson, Edinger & Patanzo, P.A.
305 N.E. 1st Street
Gainesville, Florida 32601
Telephone: (352) 338-4440
Facsimile: (352) 337-0696
E-mail: gsedinger@aol.com
17